State of Gujarat vs Hathisinh A. Parmar

J.R. Vora. J.

The instant appeal is preferred by the State u/s 378 of the Code of Criminal Procedure, against the judgment and order delivered by learned Additional Sessions Judge, Panchmahal at Godhra on 11th December, 1985 in Sessions Case No. 78 of 1985, whereby the present opponent-Hathisinh Andarsinh Parmar, being accused of the said Sessions Case, came to be acquitted by learned Additional Sessions Judge, Panchmahal at Godhra for the charge levelled against the accused u/s 302 of the Indian Penal Code. Division Bench of this Court was pleased to admit this appeal on 28th August, 1986 and bailable warrant was issued against the respondent-accused. Now, respondent-accused is represented in this appeal by learned Advocate Mr. Virendra Baheti, who is Advocate appointed to represent the accused.

As per the brief case of prosecution, the incident occurred at Village Gollav, situated in Panchmahal District, on 13th April, 1985 at about 22:00 hours. Deceased in this case is Fatehsinh Andarsinh Parmar. FIR report has been lodged by Ganpatsinh Andarsinh Parmar, who is brother of the deceased and the brother of the accused as well. Deceased and accused were stepbrothers. Complainant were four brothers and staying separately. Though out of four, three were staying in adjoining houses; while fourth was staying at little distance. Complainant-Ganpatsinh is brother of Fatehsinh-deceased in this case and third brother-Raghunathsinh are brothers from same mother; while accused-Hathisinh happens to be stepbrother by separate mother of the complainant and his real other three brothers. According to prosecution case, all the four brothers had separate agricultural land and as such their names were entered separately in separate lands. On the day of incident i.e. on 13th April, 1985 at about 22:00 hours while complainant-Ganpatsinh after taking his meal at night, was sleeping in his courtyard, accused and his wife-Amrutben started quarreling with other brothers, who were staying nearby about the land which they were cultivating. Complainant-Ganpatsinh advised them to take rest and sleep and let others also take rest. Even thereafter also, accused-Hathisinh and his wife-Amruta, continued quarreling with other brothers. At that time, deceased-Fatehsinh-brother of the complainant was sitting with Prabhatsinh Sardarsinh at the residence of Prabhatsinh. He came out of the house of Prabhatsinh and requested the accused-Hathisinh that disputes could be settled on next day and at late of night there was no meaning of quarrel and to disturb the peace and sleep of all other neighbours. At that time, accused came out from his house and inflicted two blows of knife on the body of the deceased. Deceased started shouting and accused ran away with knife. Neighbours including Ganpatsinh Andarsinh, brother of the deceased-Kalusinh, Natvarsinh Fatehsinh, both sons of the deceased and other person witnessed this incident and it was found that knife blows were given by the accused on the chest of deceased. They were preparing to call doctor as deceased was lying in seriously injured condition, but within short time, Fatehsinh died and therefore all his relatives waited for the night and on the second day i.e. on 14th April, 1985 in the morning at 9:30 a.m., Ganpatsinh Andarsinh gave complaint before Devgadh Baria Police Station, which was registered as C.R. No. I-36 of 1985. Though on the same day, within half and hour of the incident, the Police Patel of the village was contacted, but due to non-availability of any means of transport, complaint could not be filed by the complainant on the same day and was filed on the next day. The cause of dispute as per the prosecution case was the enmity in respect of the land because accused had grievance that though they were cultivating land which came to their share, but was not entered in their name in revenue record. Investigation was handed over to the then PSI, Devgadh Baria Police Station, Chandrakant Lallubhai Vora, Prosecution Witness No. 8. After recording the statement of concerned witnesses, he arranged to forward the dead body for postmortem. Prosecution Witness No. 4-Dattatray Radhakisan conducted postmortem of dead body. Investigating Officer thereafter prepared Panchnama of scene of offence and while he was leaving for Devgadh Baria for investigation at Village Gollav, accused appeared in Police Station. He had injury and was arrested noting injuries on his body. Thereafter, the accused volunteered to show weapon used in the crime and Investigating Officer draw discovery Panchnama by which from one ravine of culvert of the road, the accused took out knife which was seized as muddamal. Blood sample of the deceased and the clothes of the deceased as well as clothes of the accused upon which there were blood stains were seized as muddamal and were forwarded to Forensic Science Laboratory for analysis. Accused was also referred hospital for his injuries. Ultimately, after investigation was over, a charge-sheet came to be filed against the accused before the learned Judicial Magistrate First Class at Devgadh Baria. The offence was triable by the Court of Sessions and learned Magistrate committed the case to the Court of Sessions at Panchmahal at Godhra which was registered as Sessions Case No. 78 of 1985 and the case was made over to learned Additional Sessions Judge for trial.

Vide Exh.4 learned Additional Sessions Judge framed charges against the accused on 21st October, 1985 stating that on 13th April, 1985 at about 10:00 p.m., at Village Gollav at Devgadh Baria Taluka, in the courtyard of the deceased which was situated just opposite the house of the accused, accused with the knowledge and intention inflicted blows with knife on the chest of the deceased and since those injuries were sufficient in ordinary course of nature to cause death and thereby deceased-Fateshsinh Andarsinh Parmar died. The accused was liable for the offence punishable u/s 302 of the Indian Penal Code. Accused pleaded not guilty and hence prosecution examined as many as eight witnesses as under:

Ganpatsinh Andarsinh Exh.12

Kalusinh Fatehsinh Exh.13

Natvarsinh Fatehsinh Exh.14

Dr. Dattatrey Radhakisan Exh.15

Jayantilal Kodarlal Exh.17

Police Constable, Chhatrasinh Malabhai Exh.21

Jumabhai Tesing Exh.22

P.S.I, Chandrakant Lalluram Vora Exh.23

Prosecution also produced on record documentary evidence like F.I.R., Exh.24, Postmortem Note Exh.16, Panchnama of body of the accused and seizure of cloths at Exh.18, Panchnama of scene of offence at Exh.17, Discovery Panchnama at Exh.20 by which the clothes of the deceased was seized, forwarding note of muddamal to F.S.L. at Exh.27, Serological Report of Forensic Science Laboratory at Exh.27 and other reports of Forensic Science Laboratory.

On the evidence of prosecution being over, learned trial Judge brought to the notice of the accused circumstances appearing against him for explanation of the accused u/s 313 of the Code of Criminal Procedure. The case of the accused was of total denial and he stated that the evidence of prosecution was false. He denied to examine any witnesses in defence. Learned trial Judge, thereafter, heard prosecution and defence at length and came to the conclusion to acquit the accused of the charge u/s 302 of the Indian Penal Code levelled against him and hence this appeal against the order of acquittal by the State.

Learned Additional Public Prosecutor, Mr. M.R. Mengdey, vehemently urged that the judgment and order under challenge is not only erroneous but perverse, because it has been established by the prosecution that the death of the deceased was as culpable homicide and the injuries which he received was sufficient in the ordinary course of nature to cause death. It is vehemently argued that it has been proved by the prosecution beyond doubt that there was motive on the part of the accused on account of land dispute to cause death. It has been also argued that there are three eye-witnesses of the incident i.e. Prosecution Witness No. 1-Ganpatsinh Andarsinh, Prosecution Witness No. 2-Kalusinh Fatehsinh and Prosecution Witness No. 3-Natvarsinh Fatehsinh of the incident, who have noticed the accused inflicting injuries and running away the accused from the scene of offence with knife in the hand of the accused. The reasons advanced by the learned trial Judge for disbelieving the eye-witnesses are perverse to the extent that in-fact there are no reasons at all for acquittal. Only because these witnesses are relatives of the deceased, it could not be said that no reliance can be placed upon the depositions of these witnesses. It has been vehemently urged that the discovery evidence which is proved beyond doubt, has been brushed aside by the learned trial Court as if such evidence is not worthy of appreciation at all. It has been alleged that the incident has occurred in the courtyard of the house of the accused and the witnesses are natural witnesses. There was no reason to disbelieve the incident on mere conjecture that on account of darkness, none of the witnesses could have seen the incident. Learned trial Judge also did not place reliance on the evidence of Forensic Science Laboratory by which it is proved that the clothes seized from the accused contained blood group of the deceased and learned trial Judge simply brushed aside this evidence observing that blood group of the accused was not ascertained by the prosecution. It is submitted that though this is an acquittal appeal, but having gone through the evidence of the prosecution and having gone through the reasons assigned by the learned trial Judge for acquittal it becomes clear as day-light that the conclusions are against the weightage of the evidence and no other conclusion except conviction of the accused could be deduced from the evidence recorded and therefore the conclusion and reasons assigned by the learned trail Judge for the acquittal of the accused are so perverse that would not stands to reason or could not be supported in any circumstances and hence the interference of this Court in this appeal is called for and appeal be allowed.

Learned Advocate for the respondent, Mr. Baheti, supporting the decision of the trial Court vehemently urged that the prosecution failed to prove the case beyond doubt against the accused and the accused was rightly acquitted by the trial Court. It is submitted that this is an appeal against the acquittal wherein the Court would be loathe to interfere, unless the judgment and order of acquittal is perverse and when two views are possible, view taken by the trial Court for acquittal must prevail. According to learned Advocate, Mr. Baheti for accused-respondent, this is not the case wherein interference is required in an appeal against the acquittal. This is so because the case of prosecution is clouded by doubt and therefore the learned trial Judge acquitted the accused. It is submitted that firstly the prosecution case weakens on the ground of filing of late FIR, as the incident occurred on 13th April, 1985 at night 10:00 p.m. and complaint came to be filed after premeditation at 9:30 a.m. next day, when the distance to the Police Station and Village admittedly was of 12 kilometers. This delay in FIR has not at all been explained in F.I.R., and attempt on the part of the witnesses to explain the delay utterly fails. Therefore, this is a case wherein there is planting of the accused which obvious. Second conspicuous feature of the prosecution case which goes to the root is the injuries upon the body of the accused. It is submitted that a Panchnama has been drawn of the body of the accused when he submitted himself to the Police Station on the next day and the said Panchnama is placed at Exh.18 whereby the cloth of the accused were also seized. It is submitted that from this Panchnama it is crystal clear that when accused approached Police Station on next day, he had injury on his forehead and those injuries were serious, if had there been fracture of the skull according to medical evidence. In Panchnama accused made a categorical statement that he received the injuries in the incident. Prosecution has failed to explain this injury upon the body of the accused and therefore the prosecution witnesses conceal genesis of the incident, which creates grave doubt in the prosecution case. It is submitted that out of the three eye-witnesses examined during trial, one is real brother of the deceased and other two are the sons of the deceased. In all probabilities, these interested and relative witnesses, on account of an enmity and grudge against the accused, would try to involve the accused in this serious case and would pose them as eye-witnesses which would lead to create doubt in the prosecution case. It is submitted that no independent witness is examined by the prosecution of the incident. It was dark on account of night. There was no light around for visibility. Even the witnesses stated before the Court that they came running at the scene of offence with torch and found injured lying on earth and therefore there are probabilities that the accused might have quarrelled in his own house and might have been injured by someone else within his house because it is improbable that witnesses could have noticed the incident in this dark at such a distance and therefore the learned trial Judge rightly came to the conclusion that no reliance can be placed upon eye-witnesses. It is submitted that according to prosecution case, Police Patel of the Village was immediately contacted. The State has provided occurrence Book to Police Patel and even then in his deposition, Police Patel categorically stated that he had not prepared any occurrence report even though he was informed about the incident. These circumstances lead to suspicion that accused was not involved in the incident and nobody knew at that juncture that who caused injuries to the deceased. It is submitted that though upon the crime weapon and the clothes of the accused blood group of the deceased is noticed, but facts cannot be ignored that the blood group of the accused could not be ascertained by the prosecution especially when he had received injuries and therefore the said evidence was rightly not believed by the trial Court. It is submitted that the discovery of weapon evidence is not as per the law and statement of the accused before the Panchas could not be proved by the prosecution to the precision and therefore discovery is of no use to the prosecution. According to learned Advocate that those are the drawbacks loop-holes in the prosecution case serious in nature and on account of such lapses on the part of the prosecution to adduce concrete and reliable evidence, learned Judge acquitted the accused. It is submitted that therefore it is obvious that prosecution could not prove the case against the accused beyond doubt and the accused was entitled to acquittal. It is submitted that there is no reason to take second view than taken by learned trial Judge in this appeal against the acquittal and hence the present appeal is required to be dismissed.

Having heard learned Counsels at length and having regard to the fact that this is an appeal by the State against the acquittal, it is necessary to observe that it is true that the order of acquittal cannot lightly be interfered with. At the same time, it is not the law that all the orders of the acquittal of the trial Courts should not be probed into for justification of the order whether the same falls within the boundaries of settled legal principles. It is always open to the appellate Court in an appeal against the acquittal to re-appreciate the evidence and come to its own conclusions. But, if those conclusions are second possible view of the appreciation of evidence, the appellate Court would not ordinarily interfere with the appeals against the acquittal. But, where it is found that conclusion arrived at by the learned trial Judge are against the settled legal principles and the record and so perverse that would not stand to reason, the appellate Court is not powerless to interfere in the appeal against the acquittal as well.

Necessary, therefore, in this case is to re-appreciate the evidence recorded during the trial and to find out whether the reasons assigned by the trial Court to reach at the conclusion of the acquittal are perverse and against the evidence recorded during the trial. Necessary, therefore also to advert briefly to the evidence recorded during the trial to appreciate the same in its legal and permissible perspective.

Prosecution Witness No. 1-Ganpatsinh Andarsinh, complainant is examined at Exh.12. He deposed about his family and stated that deceased was his real brother; while accused is also his brother because his father had two wives. According to witness all the four brothers had separate agricultural land and was recorded in revenue record in the name of respective brothers. The incident occurred before eight months of the deposition. Witness further stated that it was about 10:00 p.m. He was resting at the Otla of his house. It must be noted here that all the brothers are residing from near and adjoining house of one Falia. Witness further stated that at that time, accused and his wife-Amrut were quarreling with other brothers from their house. The house of the accused was situated at the distance of 20 feet from the house of the witness. Witness stated that the house of the accused was clearly visible from his house. Accused and his wife were quarreling that the land which they were cultivating was not recorded in their name in revenue record and therefore other brothers might seize the land from them and would not allow them to cultivate. Therefore, the witness stated to the accused that let him rest and sleep at that time and advised the accused also to take rest and go to sleep because it was late at night. According to witness, even then the accused continued to quarrel. In the meantime, deceased-Fateshsinh Andarsinh who was sitting in the house of Prabhatsinh, came to the house of the accused and near Otla of the house of the accused. At that juncture, accused came out of house and deceased-Fatehsinh scolded the accused not to fight and quarrel further. Upon that juncture, accused-Hathisinh who had a knife in his hand, inflicted two blows on the body of Fatehsinh on his chest. Witness stated that he himself, Natvarsinh, Kalusinh and Fulsinh also came running at the scene of offence. After some time, according to witness, Fatehsinh died and the accused absconded from the scene of offence. Witness further stated that since it was night, they did not go for recording of complaint, but Natvarsinh Fatehsinh informed the Police Patel of the village. Police Patel visited the scene of offence. It was a time of night and to go to the Police Station according to witness, some hills were to be crossed and there was danger of wild animals and there was no other means of conveyance to go to the Police Station. At that night, complaint could not be lodged. On the next day in the morning, he went to the Police Station at Devgadh Baria in S.T. Bus. Police Patel accompanied him. From his village they started at about 8:00 to 8:30 and reached at Devgadh Baria Police Station and lodged a complaint which he identified at Exh.24 and recognized his signature. He deposed that he had shown scene of offence to the Police. He has been cross-examined in detailed by the defence. In his cross-examination, he deposed that he heard shouts of the deceased and he reached at the scene of the offence. When he reached at the scene of offence, deceased was lying on the ground. He was first person to reach at the scene of offence and thereafter Natvarsinh Fatehsinh, Kalusinh Fatehsinh and Arjunsinh Udesinh also gathered there. Natvarsinh was carrying torch. The deceased had been to the house of accused and he had approached upto the door of the house to say that why the accused was unnecessarily quarreling. He denied the suggestion that when he reached at the scene of offence, one stick was lying down there. There were eight to ten houses in the Falia of the incident. The house of Police Patel was situated at about half of a mile from the scene of offence. Police Patel visited the site of incident at about 10:30. He has further stated in his cross-examination that the accused had a son whose name was Ratansinh and Ratansinh was aged about 18 to 20 years at that juncture. He denied the suggestion that there was some altercation between the deceased and the accused. He admitted that they had informed Police Patel about the incident. He further stated that Police Patel had not written any report. He denied the allegation that Police Patel did not write the report because they did not know who caused injuries to deceased. He admitted that a Police Station was situated at a distance of 12 Kilometers from their village. In the morning, they had gone to Devgadh Baria in S.T. Bus and reached there at about 8:00 to 8:30. He denied the allegation that with manipulation with the Police and after pre-meditation, the complaint came to be lodged. He admitted that in the complaint, why the complaint was not lodged on that night itself, had not been mentioned. He stated that nobody had beaten the accused and he did not notice any injuries on the body of the accused. He did not know whether accused was sent to Hospital for treatment. This is all is the evidence of Prosecution Witness No. 1-eye-witness.

Prosecution Witness No. 2-Kalusinh Fatehsinh is examined at Exh.13. He is an eye-witness and son of the deceased. According to him, he had five brothers, Natvarsinh, Jelsinh, Fatehsinh, Dalpatsinh Fatehsinh and Jaswantsinh Fatehsinh. The incident had taken place before eight months of the deposition at 10:00 p.m. According to this witness, at that time, he was sitting on the Otla of his house. His house was situated at the distance of 15 feet from the house of the accused. It is deposed by him that house of the accused and his house are in the same line and adjoining. Accused happened to be his uncle. At that time, accused and his wife, sitting in their house were quarreling and disputing about the land and were insisting that the land which was given to their share, why was not recorded in the revenue record. Ganpatsinh Andarsinh-brother of the deceased requested the accused that it was late night and if at all accused and his wife intended to quarrel, it could be done on the next day even. But the accused continued quarreling. According to this witness, his father was sitting at the house of Prabhatsinh Sardarsinh and on account of quarreling by the accused, he went near the house of the accused. Witness stated that house of Prabhatsinh Sardarsinh was situated at the distance of 20 feet from the house of the accused and was situated in opposite line of the house of the accused. According to this witness, his deceased father scolded the accused and stated that it was late at night and accused should rest himself and could continue the quarrel next day. At that juncture, accused came out of his house and inflicted knife blows on the body of the deceased. According to this witness, his father raised shouts for the help and therefore he himself went towards his father. Accused, at that juncture, absconded from the scene of offence alongwith knife. According to this witness, just adjoining to the house of the accused, house of Ganpatsinh Andarsinh was situated and adjoining to the house of Ganpatsinh Andarsinh, their house was situated. At that juncture, Ganpatsinh Andarsinh was also sitting on the Otla of his house. Between the house of accused and Ganpatsinh, there is a wall of only 1 feet in other side. The house of Prabhatsinh, the house of this witness and the house of Ganpatsinh were adjoining to each other. According to this witness, the house of Prabhatsinh Sardarsinh was situated at the distance of 20 feet from his house. According to this witness, there was electricity in his house and there was electricity in the houses of everybody situated in the Falia. According to this witness, his father was injured in the chest and abdomen. In examination in cross by defence, witness denied the allegation that at the time of incident, the witness was lying in his courtyard. He admitted that Police had recorded his statement and he admitted that in statement before Police, he narrated that after taking night meal, he was lying in his courtyard and hearing shout, he reached at the scene of offence. He denied the allegation that when he reached at the scene of offence, his father had fallen down on the ground. He stated that when he closed the eyes of his father by his hand, his father fallen down on the ground. He denied the allegation that before him, his uncle, Ganpatsinh had reached at the scene of offence. He stated that his brother-Natvarsinh Fatehsinh came there with torch. He denied that accused received injuries at that time. He stated that accused reached at Devgadh Baria Police Station when he was at the Police Station. At that time also, he did not notice any injury on the body of the accused. He deposed his ignorance about whether accused was sent to the Hospital for treatment. He denied the allegation that he did not notice who inflicted blows of knife on the body of his father. He denied the allegation that, except Arjunsinh, there was no electricity in other houses. This is all is the evidence of this eye-witness.

Prosecution Witness No. 3-Natvarsinh Fatehsinh is examined at Exh.40. He also is an eye-witness. He is son of the deceased and deposed that deceased was his father and accused happened to be his uncle. The incident took place on 13th April, 1985 about 10:00 p.m. He was sitting at the house of Prabhatsinh. His father came to the house of Prabhatsinh, when he was sitting there. He, his father and Prabhatsinh were chatting amongst themselves. His sister-in-law, Jadiba and Manuben were also there. At that time, his uncle accused-Hathisinh and his wife were quarreling with others. Ganpatsinh requested to the accused not to make any disturbance at night. In the meantime, his father came out of the house of Prabhatsinh and went to the house of Hathisinh. His father requested accused whether he intended to quarrel all of the night or would permit everybody to sleep. In the meantime, he heard shouts of his father and hearing shouts from the house of Prabhatsinh, he proceeded immediately to the house of Hathisinh. He noticed that there was knife in the hand of Hathisinh (accused) and his father had fallen on the ground. He noticed that there were two injuries on the body of his father and thereafter the accused absconded from the scene of offence. Thereafter, the persons gathered at the scene of offence. Somebody advised to call the doctor, but in the meantime his father had died. He, then went to call Police Patel-Juma Tersing. Police Patel was informed about the incident and he had visited the scene of offence. There was no transportation at night from their village to come to Devgadh Baria and therefore it was not possible to lodge complaint at night. In the next morning, Ganpatsinh Andarsinh had been to Police Station, Devgadh Baria to lodge a complaint. In his cross-examination by the defence, he stated that his uncle-Ganpatsinh from the courtyard of his house requested the accused not to quarrel, but accused continued quarreling. His father requesting accused-Hathisinh was heard by him sitting in the house of Prabhatsinh and immediately thereafter he heard the shouts of his father. He denied the allegation that after hearing the shouts, he switched on the torch and noticed that his father had fallen down on the ground. He denied that he narrated before the Police that after hearing shouts of his father, he immediately switched on the torch and noticed that his father was fallen down on the ground. He denied the allegation that he did not notice the accused inflicting blows of knife upon his father. He denied the allegation that he did not state before the Police that he did not notice inflicting knife blows by the accused upon the body of his father. He denied the allegation that it was not ascertained that who inflicted blows on the deceased and after premeditation accused was planted falsely in the incident. This is all is the evidence of third eye-witness.

Prosecution Witness No. 4-Dattatray Radhakisan, who was Medical Officer at Devgadh Baria and he conducted postmortem on the dead body on 14th April, 1985. He noticed following injury on the dead body.

An incised wound on the right side of chest 1 Cm. away from the mid line extending from medial end and clavicle to 4th rib obliquely going outwards, size 21/2 x 11/2 x deep to lung tissue.

An incised wound on the left side of chest at the level of xyphsterum 2 cms. away from mid line in the left side size 1 inch x 1/2 inch x 1/2 inch.

Abrasion mark on the left side of the chest- 11/2 inch above the left ripple size 1 inch x 1/4 inch size 1" x 1/4".

He also noticed cutted ribs second and third at sternocostal junction on right side and the internal injuries. He found cutted ribs, second third on right side of chest, lacerated on right side of Apex of lung. He noticed that upper part of lung was lacerated and clotted blood was present. According to him, the cause of death was shock due to haemorrhage. In his deposition he stated that internal injury No. 1 i.e. injury to lungs and ribs were sufficient in ordinary course of nature to cause death. He has been cross-examined by the prosecution wherein he stated that injury Nos. 2 and 3 were of simple nature and could be caused by hard and blunt substance. Nothing substantial could be brought about in cross-examination of this witness.

Prosecution Witness No. 5-Jayantilal Kodarlal examined at Exh.19 is Panch of Panchnama Exh.20. He is also a Panch of the Panchnama of the body of the accused. According to him, he was called as Panch on 14th April, 1985 at Police Station. Police Officer asked the accused where was the knife. Accused was ready and willing to show the knife and preliminary Panchnama was prepared. Accused thereafter led the Police and Panchas upon the Devgadh Baria Road and from broken culvert underneath one stone, he took out the knife. There was blood stains on the knife which Police seized. He supported Panchnama at Exh.20. In cross-examination, he was asked the place from which the accused took out the knife was open space. He denied the fact that accused and Police did not take him to that place. This is all is the evidence of this witness.

Prosecution Witness No. 6-Chhatrasinh Malabhai, is the Police Witness and he entrusted the dead body to the hospital for postmortem and brought back the clothes of the dead body to the Police Station which Police seized and he identified those clothes from muddamal. Witness has not been cross-examined by the defence.

Prosecution Witness No. 7-Pumabhai Tersinh examined at Exh.22 was the Police Patel of the village where the incident took place. He deposed that Natvarsinh Fatehsinh at about 10:30 at night informed him that accused-Hathisinh has murdered his father by inflicting knife blows. Witness stated that he visited the place and noticed that deceased had died and had two injuries of knife blow. He deposed that on the next day in the morning at 8:00 a.m. in S.T. Bus alongwith Ganpatsinh Andarsinh they had been to Devgadh Baria Police Station to lodge complaint. In his examination in cross, though he admitted that he was required to prepare occurrence report as Police Patel, but he did not prepare occurrence report. He denied the allegation that earlier Police was not informed and occurrence report was not prepared because it was not known that who was the accused. He denied the allegation that in-fact injuries were inflicted by the son of the accused, afterward accused was planted as assailant. This is all is the evidence of this witness.

Last witness, Prosecution Witness No. 8-Chandrakant Lalluram Vora, the then, PSI, Devgadh Baria Police Station examined at Exh.23 deposed that on 14th April, 1985 when he was in-charge of Police Station, complainant lodged his complaint which he produced on record at Exh.24. He took over the investigation. He prepared the inquest Panchnama, went to the place of offence, prepared the scene of offence, collected muddamal and sent to FSL. He recorded the statement of witnesses on the same day at 15:00 hours. Accused was arrested and accused approached Police Station on the same day when the witness was going for investigation. Accused had injuries on his forehead and a Panchnama of his body was drawn. According to this witness, his clothes were blood stained which were seized. He further stated that accused voluntarily stated so and recovered muddamal knife and therefore preliminary Panchnama in presence of Panchas were prepared and a knife was recovered from a culvert by the accused which was seized and knife contained blood stains. Accused was sent to Police Station because he had injuries. He produced on record Analytical Report of Forensic Science Laboratory at Exh.27 and he submitted thereafter a charge-sheet. He was examined in cross by the defence. He denied the allegation that accused had recovered muddamal knife. Witness stated that he could not say whether Police Patel accompanied with the complainant at Police Station. He stated that he knew Police Patel. A contradiction is proved as to the deposition of witness-Kalusinh Fatehsinh who had narrated before the Police that after taking night meal, he was lying in the courtyard of his house. Witness further stated that he had also recorded the statement of witness-Natvarsinh Fatehsinh and stated that the said witness had narrated before him that at the time of the incident, his father had raised shout and he had switched on a torch and found that his father was fallen on the ground in the courtyard of Hathisinh. This is all is the evidence of prosecution.

It is necessary now to scrutinize the reasons assigned by the learned trial Judge for acquittal. Because, it is necessary that the reasons and conclusions arrived at by the learned trial Judge are in accordance with the evidence recorded during the trial and result of appreciation of evidence as per settled norms of law.

According to learned trial Judge, the case of prosecution is based on complaint, which is filed late by 12 hours and no explanation which could be said to be proper explanation could be offered by the prosecution. This has been discussed by the learned trial Judge in paragraph 14 and 15 of the judgment impugned in this appeal. Further, it is the conclusion of the learned trial Judge that in-fact according to the complainant and witnesses, there was darkness at night at the time of incident and in examination in cross, complainant admitted that he heard the shouts of the deceased and hearing shouts he reached at the spot and found the deceased. The witness refers torch and also refers that because of torch was switched on, it was noticed that deceased was found lying on the ground, and therefore, it could not be believed that any of the witness might have witnessed the incident in the darkness or witness were in position to see that the accused absconded from the scene of offence with the knife.

In paragraph 15 of his judgment, the learned trial Judge came to the conclusion that from the evidence of witness-Ganpatsinh it was clearly established that the situation was such that Ganpatsinh could not have seen the incident. In paragraph 17 learned trial Judge stated that the Police Station was only at the distance of 12 kilometers and even with bullock-cart in three to four hours, the witnesses could have approached the Police Station. Police Patel did not prepare occurrence report and therefore, there was possibility that it was not known that who was assailant and therefore the complaint came to be lodged late. It is further observed by the learned trial Judge in paragraph 18 that the land was in the name of witness-Ganpatsinh and when accused intended to change the records of revenue, Ganpatsinh must have grudge against him and being stepbrother Ganpatsinh might have attempted to falsely implicate the accused in this incident. Referring to minor contradictions in deposition of Prosecution Witness No. 2-Kalusinh Fatehsinh and Natvarsinh Fatehsinh in paragraph 19, learned trial Judge stated that none of the witnesses inspired confidence because witness-Kalusinh-son of the deceased was sitting at the house of Prabhatsinh and never went to the scene of offence and only in the light of the torch, he found his father lying. While other witness stated before the Police that he was sleeping in his courtyard, and therefore, he could not have seen the incident. Learned trial Judge further observed that what becomes clear from the above circumstances was that there was dark at the scene of offence and it could not have been noticed by anybody who came out of the house of the accused, and therefore, learned trial Judge did not believe two other witnesses i.e. Kalusinh and Natvarsinh Fatehsinh.

In paragraph 21 learned trial Judge observed that witnesses were relatives of the deceased and were keeping grudge against the accused, and therefore, also their depositions could not inspire confidence. Learned trial Judge discarded the possibility that only because the incident occurred near the door of the house of the accused, it could not be said that accused was involved in the incident.

In paragraph 25 and 26 of the judgment, learned trial Judge observed that the finding of the blood group of the deceased on the clothes of the accused was also not helping to the prosecution case, because blood group of the accused was not ascertained especially when admittedly the accused had injuries on his body and in paragraph 27 it has also been observed by trial Judge that the injuries on the body of the accused has not been explained by the prosecution, which creates doubt in the prosecution case. Learned trial Judge also did not believe the evidence of discovery of knife which he discussed in paragraph 29, 30 and 31 of the judgment because according to learned trial Judge the statement of the accused that he had concealed the knife could not be proved by the prosecution which led to discovery and therefore according to Section 27 of the Evidence Act, the discovery was not proved according to law.

In short, in paragraph 34 learned trial Judge narrated 15 circumstances to disbelieve the prosecution case and those 15 circumstances are as under.

The incident took place besides opposite the house of the accused.

Deceased died a culpable homicide.

The incident took place at about 10:00 in the darkness of the night.

Only when deceased-Fatehsinh cried and shouted, the attention of the witnesses diverted towards the scene of offence.

Witness-Ganpatsinh first reached at the scene of offence and thereafter witness-Kalusinh; at that time, there was darkness and they noticed in the torch light that deceased had injuries.

None of the three eye-witnesses had noticed the accused inflicting injuries on the body of the deceased and on appreciation of evidence, there was no opportunity to any of the witness to notice this incident.

The fact that accused absconded could not be believed because the accused could not have been recognized by the witness.

Out of three eye-witnesses, one is real brother of the deceased and other two are the sons of the deceased. They had a dispute of land amongst themselves about land, and therefore, there was enmity between the accused and the witnesses.

It is not proved that accused made statement before Police that at particular place the accused had concealed weapon, and therefore, discovery evidence is of no use to the prosecution.

Finding of blood group of deceased on the clothes of the accused is of no use because blood group of the accused was not ascertained.

F.I.R. has been filed late and the explanation of the prosecution witnesses in this respect is not trustworthy.

Police Patel though informed about the incident, did not prepare occurrence report, and therefore, the evidence of prosecution was not believable.

The evidence of Police Patel could not be believed that Natvarsinh conveyed to him that accused had inflicted injuries because had it been so, Police Patel must have prepared occurrence report.

The injuries on the forehead of the accused has not been explained by any of the witnesses of the prosecution, and therefore, genesis of the incident is concealed.

Son of the accused who aged about 18 to 20 years was also staying with the accused, and therefore, the possibility cannot be ruled out that son of the accused might have caused injuries to deceased.

Therefore, afore-stated are the reasons of the learned trial Judge for acquitting the accused.

It must be noted that mis-appreciation of evidence recorded during trial suiting to the conclusion tailored out in favour of accused in a trial, is nothing but perversity for which the Appellate Court is empower to evaluate the evidence on judicial principles even in appeal against acquittal.

In the matter of Girja Prasad (Dead) By Lrs. v. State of M.P., in a decision as reported in (2007) 7 SCC 625, the Apex Court has in paragraph 28 observed as under:

Regarding setting aside acquittal by the High Court, the learned Counsel for the appellant relied upon Kunju Muhammed v. State of Kerala, Kashi Ram v. State of M.P and Meena v. State of Maharashtra. In our opinion, the law is well settled. An appeal against acquittal is also an appeal under the Code and an Appellate Court has every power to re-appreciate, review and reconsider the evidence as a whole before it. It is, no doubt, true that there is presumption of innocence in favour of the accused and that presumption is reinforced by an order of acquittal recorded by the Trial Court. But that is not the end of the matter. It is for the Appellate Court to keep in view the relevant principles of law, to re-appreciate and reweigh the evidence as a whole and to come to its own conclusion on such evidence in consonance with the principles of criminal jurisprudence.

Necessary it is, therefore, to appreciate that how the whole trial and evidence is dealt with by the learned trial Court. Criminal trials are not fairy tales, but the concrete facts actually occurring in the lives of human being and therefore, while appreciating the evidence in criminal trial it must be borne in mind by the trial Courts that with due diligence the evidence recorded must be appreciated and standard of such exercise would be such as expected from an ordinary prudent person. While appreciating the evidence the trial Court must bear in mind the set up and circumstances in which the crime is committed, quality of evidence, nature and temperament of witnesses, level of understanding and power of perception of individual witness and probabilities in ordinary course of nature about the occurring of the incident as might have been witnessed by the witnesses. Instead of evaluating a trial with cantankerous approach and finding fault with the prosecution case here and there, it must be endevour on the part of the Court to find out the truth from the evidence recorded. Analyzing, sifting and assessing evidence on record with reference to trustworthiness and truthfulness of witness by a process of dispassionate, judicial scrutiny is the prime and pious duty of the trial Court to arrive at right conclusion. It is wholly perverse approach to look at the case of the prosecution with an obsession of an air of total suspicion. What is required to be insisted upon is not implicit proof. But, judicial mind with objective and reasonable appreciation of evidence must find out the truth, it might have been surrounded by falsity. Credibility of witness is to be assessed with reasonable probabilities arising out of the prosecution case and events taking place in ordinary course of nature and merely because witnesses are related or interested, their evidence cannot be thrown overboard. It has never been a rule of criminal jurisprudence that each evidence produced by the prosecution must be corroborated with mathematical nicety.

It must also be borne in mind that the present is a case wherein prosecution has come with the direct evidence of the eye-witnesses to prove its case. It is necessary to bear in mind that when prosecution proposes to establish the case through direct evidence of eye-witnesses, it becomes duty of a Court to appreciate such evidence carefully. The evidence of eye-witnesses cannot be brushed aside lightly or on imaginary or on flimsy ground. Ordinarily, an eye-witness is an worthy of credence unless it is established that witness has reason to fabricate the case against the accused and that the facts from other evidence on record would be that it would not be just and proper to rely upon such witnesses. In cases of eye-witnesses, such evidence is required to be tested by considering as to what was the proximity of the witnesses with the scene of offence; what was the opportunity available to them to have witnessed the incident; whether the particular eye-witness was capable of observing of incident taking place and reproduce the same before the Court, etc. Once it is established that the presence of eye-witness at the scene of offence was natural and that he had an opportunity to observe the incident, then unless it is shown that the evidence of an eye-witness is tainted for the sound reasons, such evidence must be acted upon. Needless to say that each case stands on its particular facts. But, generally while appreciating the evidence of an eye-witness, the above cardinal rule should be taken into consideration by a Court. While in the case at hand, direct evidence of three eye-witnesses have been brushed aside by the trial Court on imaginary and flimsy grounds which would not stand to reason having appreciated the circumstances of the case as a whole.

Three eye-witnesses, Ganpatsinh Andarsinh, Kalusinh Fatehsinh (P.W. No. 2) and Natvarsinh Fatehsinh (P.W. No. 3) empathetically stated that they were within the proximity of about 15 to 20 feet of the scene of offence and Prosecution Witness No. 1-Ganpatsinh Andarsinh states to the extent that he witnessed that deceased tried to pacify accused, at that time, accused inflicted blows on the body of the deceased and deceased had fallen down. Likewise, Prosecution Witness No. 2-Kalusinh Fatehsinh also was sitting in the house of Prabhatsinh, which was situated just opposite of the house of the accused and the distance was hardly 20 feet noticed the incident as stated above and he also reached at the spot. While Prosecution Witness No. 3-Natvarsinh Fatehsinh heard shouts of the deceased who was also within the proximity of the scene of offence at about 20 feet distance. This worthy evidence of eye-witnesses have been brushed aside by the learned trial Judge only on the ground that they all are related witnesses and that at the time of the incident, there was darkness and it was 10:00 p.m. in night and in all probability none of the witnesses had an opportunity to witness the incident. This logic is the imagination of the erroneous thinking of the trial Court. We do not find anything on the record that at the time of incident, though it was darkness it would not possible for the witnesses to witness the incident. In cross-examination, Prosecution Witness No. 1-Ganpatsinh denied empathetically that on account of darkness assailant could not be recognized and therefore occurrence report was not prepared by the Police Patel. Except this, nothing is asked in examination in cross of this witness about the darkness. Only because one of the witness reached there with the torch, no prudent man would come to the conclusion that it was darkness at that time. The real scenario which emerges from the cross-examination of the witnesses is disclosed fully which learned trial Judge ignored completely. In the evidence of Prosecution Witness No. 2-Kalusinh Fatehsinh, in his examination in chief, he categorically stated that in his house and in the houses which were situated around all were having electric lights. In his cross-examination, again he denied the allegation that except the house of Arjunsinh, there was no electric light in any of the house. There was nothing on the record except above evidence in this regard to come to the conclusion that it was a darkness and therefore the eye-witnesses had no opportunity to witness the incident. On account of perfunctory assessment of evidence by the learned trial Judge, the vital fact escaped from consideration that there were electric light in all the houses situated around. It has come in evidence which cannot be controverted at all that the houses of the witnesses were adjoining to the houses of the accused and house of Prabhatsinh which is situated opposite to the house of accused was hardly at the distance of 20 feet. Panchnama which is produced at Exh.17 makes it very clear that how the houses of the witnesses and accused were situated and none of the house is situated to that distance that witnesses might not have noticed the incident. This is more corroborated by the map produced at Exh.11. Even Exh.11 denotes electric polls of street light. When there is a positive evidence of witnesses that there was electric light in each of the houses situated in the area where the crime took place, we fail to understand that how the learned trial Judge come to the conclusion that on account of darkness there was no opportunity to these eye-witnesses to notice the incident and they were falsely implicating the accused on account land dispute.

Thus, when we re-appreciate the evidence of these eye-witnesses on touchstone of credibility, we do not find a single reason to discard the evidence on the flimsy grounds which are not sustainable in the eye of law. In the cross-examination which we have referred of each of the witnesses, nothing is coming out as to label these witnesses as lier and so crafty as to manipulate the involvement of the accused in this crime. It must be borne in mind that all the three eye-witnesses are rustic villagers. Above all, their presence at the scene of offence at night 10:00 p.m. is quite natural and cannot be controverted. Simplicity and naturalness which we find in the testimony of these witnesses lends credence of sure guarantee of truth. Not a single material is asked by the defence that why these witnesses would permit real culprit to go scot free and implicate present accused in this serious crime. In-fact, learned trial Judge missed the happening of the events and the sequence at all. We gather the impression that trial Court understood that accused and his wife were quarreling against each other about the land. But, it is not so as transpires from the evidence recorded. It is the case of the prosecution that accused and his wife were quarreling with other brothers of the accused in respect of land from their house, which denotes the proximity of the witnesses to the scene of offence. It is to be noted that instead of quarreling against the accused everybody attempted to pacify him and advised the accused to take rest. When deceased was elder as it appears approached the accused to pacify him, he met with fatal blows of knifes at the hands of the accused. This is all transpires from the evidence of the prosecution and it is well established through the direct evidence which is discarded by the learned trial Court through the approach of air of total suspicion. If such approach is taken in the trials by the Courts, we think that none of the trial would be proved by the prosecution and we will have to change jurisprudence of criminal justice system. There is nothing on the record or in cross-examination or even simplest infirmity or contradiction to come to the conclusion that prosecution case was not trustworthy. We cannot come to the conclusion therefore that only because there was darkness and no light witnesses had no opportunity to notice the incident. On the contrary, it has been established that there was electric light in each of the house including electric poll of street light and it has not been controverted by the defence in cross-examination in all the witnesses that there was no electricity and it was darkness.

It is not the case wherein the attention of witnesses were drawn when deceased cried for help after he received the blow. Learned trial Judge ignored the fact that accused was quarreling from his house and attention of all witnesses were towards the accused only. We are unable to understand that how learned trial Judge come to the conclusion that when witness-Ganpatsinh and Kalusinh reached at the scene of offence, it was darkness and thereafter Natvarsinh came at the scene of offence and noticed in the light of a torch that accused was injured. It is not permissible at all to pick out a sentence from the evidence of one witness and to join said sentence with the sentences of the depositions of other witnesses and come to the conclusion. This conclusion arrived at by the learned trial Judge in paragraph 34 appears to be conjecture only. The other observations i.e. observations Nos. 6 and 7 made by learned trial Judge in paragraph 34 are against the evidence on record.

Therefore, thus conclusion of the trial Judge that it was dark at night and the witness had no opportunity to notice the incident is against the record of the case. Each case especially in criminal trials has to be judged on its own facts. In the present case, it has been established that there were electric light in houses situated in the area and there was light. A decision of Supreme Court in the matter of Shivraj Bapuray Jadhav and Others Vs. State of Karnataka, is required to be referred here. This may not be precedent but the guidelines of Supreme Court in appreciating the evidence and certain circumstances must be noted. In respect to identification at night of known persons, the Apex Court observed as under:

We have carefully considered the submissions of learned Counsel appearing on either side. In our view, the High Court, having regard to the superficial manner in which the evidence has been discussed, analyzed and considered in a perfunctory manner by the learned Sessions Judge, was very well justified in undertaking the reconsideration of the evidence in their proper perspective in order to ensure that no miscarriage of justice resulted in the matter. The submission that the occurrence was two days prior to the new moon day and, therefore, the ocular witnesses could not have witnessed the occurrence as they claimed to have, does not appeal to us for the reason that not only, as noticed by the High Court, the parties are used to live in the midst of nature and accustomed to live without light. The parties could have been identified easily not only from the voices but from the fact that they are known persons and close relatives and living in the nighbouring huts. Though the learned trial Judge had noticed some of the discrepancies in the evidence, as rightly observed by the High Court, nothing substantial seems to turn out of the so called discrepancies which appear to be merely trivial, not undermining the credibility or truthfulness of the evidence spoken by witness or the case of the prosecution and as rightly noticed by the High Court, the defence could not succeed in bringing it to the notice of the Court any single discrepancy on any material aspects of the case in the form of contradiction by marking it on behalf of the accused in the evidence of the eye-witness, which could be said to either belie or undermine the credibility of those witnesses who claimed to have witnessed the occurrence and deposed before the Court. In a case which turns on direct evidence, the motive element does not play such an important role as to cast any doubt on the credibility of the prosecution witness even if there be any doubts raised in this regard. Factually, as against the material on record to indicate the misunderstandings and enmity between the deceased and accused, nothing worth credence could be brought on record for the defence to substantiate the slender suggestion of an alleged dispute between Jadhav family and the Magar family. Even that apart, in this case, ample materials were on record to show that the family of the accused and the deceased were not in good terms and had strained relationship over the partition affair which itself as more than sufficient to constitute the motive, as well.

The approach of the learned trial Judge in appreciating the evidence appears not to be only erroneous, but de-hors the record and settled principles of criminal jurisprudence. In such cases what should be the mode of appreciating the evidence is noted by the Apex Court in the matter of State of Maharashtra Vs. Siraz Ahmed Nisar Ahmed and Others, and in paragraph 33, the Supreme Court has observed as under.

The Designated Court has rejected the evidence of both the witnesses on consideration of other aspect that PW- 55 had stated that no search of the flat was made by the police party. While appreciating the evidence, the court must keep in mind that the powers of observation differ from person to person. What one may notice, other may not. An object or thing happened might reflect in the image of a person''s mind, whereas it may go unnoticed on the part of another. It has not come out in the evidence or in the cross-examination that PW-55 was also a party to the search of the flat along with PW-50 after the arms were produced by the accused who had made a categorical statement that he had made a search of block No. 402 before the completion of the panchnama. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the court to scrutinize the evidence, more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence, as a whole, and evaluate them to find out whether it is against the general tenor of the evidence given by the witnesses and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matter not touching the core of matter in issue, hyper-technical approach by taking sentence out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter, would not ordinarily permit rejection of the evidence as a whole.

Thus, while appreciating the evidence of these three witnesses as discussed above, we come to the conclusion that there is no iota of even suspicion to disbelieve the trustworthy evidence of these three witnesses much less on flimsy and imaginary grounds as observed by learned trial Judge. We do not find any infirmity or contradiction in the evidence of these witnesses. Only one contradiction is attempted to prove in the evidence of Investigating Officer which is in respect of witness-Kalusinh Fatehsinh. In deposition, Kalusinh Fatehsinh stated that he was sitting on Otla of his house; while in his statement before Police he stated that he was sitting in front courtyard of his house. This variation would not shake anything in any manner the prosecution case. Likewise, in the evidence of witness-Natvarsinh Fatehsinh before the Police he stated that in light of torch when he heard shouts of his father, he noticed that his father had fallen down on the ground. From this perhaps the learned trial Judge misguided himself that it was darkness and incident was not noticed by the witnesses. As stated above the tenor of the prosecution case as a whole has to be judged from all corners of the evidence. The evidence of Natvarsinh Fatehsinh cannot be judged from this sentence only, but his evidence must be appreciated from what he has stated in his examination in chief which is corroborated by other two witnesses, and therefore, in-fact there is no infirmity or contradiction in the evidence of eye-witnesses to completely ignore their evidence. But, the failure of justice has occasioned because learned trial Judge appreciated the evidence of prosecution with total air of suspicion and doubt which is against the settled principle of criminal jurisprudence.

In the matter of Girja Prasad (Dead) By Lrs. v. State of M.P., in a decision as reported in (2007) 7 SCC 625, the Apex Court has in paragraph 29 has observed as under:

In Shivaji Sahabrao Bobade and Another Vs. State of Maharashtra, , dealing with a similar situation, a three Judge Bench speaking through V.R. Krishna Iyer, J. stated: (SCC p.799, para6)

Even at this stage we may remind ourselves of a necessary social perspective in criminal cases which suffers from insufficient forensic appreciation. The dangers of exaggerated devotion to the rule of benefit of doubt at the expense of social defence and to the soothing sentiment that all acquittals are always good regardless of justice to the victim and the community, demand especial emphasis in the contemporary context of escalating crime and escape. The judicial instrument has a public accountability. The cherished principles or golden thread of proof beyond reasonable doubt which runs thro'' the web of our law should not be stretched morbidly to embrace every hunch, hesitancy and degree of doubt. The excessive solicitude reflected in the attitude that a thousand guilty men may go but one innocent martyr shall not suffer is a false dilemma. Only reasonable doubts belong to the accused. Otherwise any practical system of justice will then break down and lose credibility with the community. The evil of acquitting a guilty person light-heartedly as a learned author has sapiently observed, goes much beyond the simple fact that just one guilty person has gone unpunished. If unmerited acquittals become general, they tend to lead to a cynical disregard of the law, and this in turn leads to a public demand for harsher legal presumptions against indicated ''persons'' and more severe punishment of those who are found guilty. Thus too frequent acquittals of the guilty may lead to a ferocious penal law, eventually eroding the judicial protection of the guiltless. For all these reasons it is true to say, with Viscount Simon, that "a miscarriage of justice may arise from the acquittal of the guilty no less than from the conviction of the innocent." In short, our jurisprudential enthusiasm far presumed innocence must be moderated by the pragmatic need to make criminal justice potent and realistic. A balance has to be struck between chasing enhance possibilities as good enough to set the delinquent free and chopping the logic of preponderant probability to punish marginal innocents.

It is settled that effort of the criminal court should not be prowl and to find out the imaginative doubts. Unless the doubt is of a reasonable dimensions, with the judicial mind thinks, require consideration with objectivity, no benefit can be claimed by the accused on the basis of some hypothetical proposition.

The allegation against the witnesses is about they being related and interested witnesses. We need not to reiterate the law laid down by the Apex Court in various decisions. The evidence of interested or related witnesses must not be thrown overboard unless it is found that their evidence is tainted by fabrication, concoction, contradiction and grave infirmity and to evaluate the evidence of relative witnesses careful scrutiny is required, that is all is the principle. We have discussed and appreciated the evidence of eye-witnesses as above stated and there is no infirmity in the evidence of witnesses to throw the same or overboard only because they are relatives of the deceased. It must not escape from the consideration that witnesses are not related to deceased only, but they are related to accused as well. May be the accused a stepbrother of the witnesses, but that itself would not lead to any inference that on account of this or there was some land dispute, the witnesses would plant accused and will permit the real culprit to go scot free. It must be borne in mind that set of circumstances in which the incident has occurred is such that area is of a Falia wherein witnesses, accused and deceased who are related were staying. There was no possibility at all to a third person to enter and murder the deceased. Had it been so, there is no reason why witnesses would name the accused as assailant and should have been allowed real culprit to go scot free. At the same time, it is also required to be borne in mind that possibility must be ruled out that eye-witnesses were not present at the scene of offence. This is so because it was 10:00 p.m. at night and everybody was resting in his respective house which were adjoining and therefore, the presence of eye-witnesses is quite natural at the scene of offence. In such circumstances it is far stretch conjecture, with weighty evidence on record that witnesses had no opportunity to witness the incident and further surprisingly enough from mere suggestion and stray cross-examination, learned trial Judge considered the possibility that son of accused was in the house of accused aged about 18 to 19 years may also have committed murder of the deceased, when overwhelming evidence establishes the incident beyond reasonable doubt.

Only because Police Patel did not prepare occurrence report, it is unreasonable and unjust to come to the conclusion that something fishy amongst the witnesses. Police Patel are rustic villagers. They are not trained Police personnel. Sometimes, not sufficiently even educated to manipulate such plan. Nothing is brought against the Police Patel that what was the enmity of Police Patel i.e. Prosecution Witness No. 7-Pumabhai Tersinh. He fully corroborates the eye-witnesses. Nothing is shown by defence to assume enmity to the extent that Police Patel also joined hands with witness to plant accused in this serious murder case. On the contrary, it appears to be quite natural that Police Patel visited scene of offence and noticed the deceased lying. His evidence is in corroboration to the eye-witnesses and cannot be said to be damaging to the prosecution case, as has been viewed by the learned trial Judge.

So far as late filing of FIR is concerned, though no explanation is given in the FIR itself, but proper explanation has been offered by the witnesses. Incident has taken place in the year 1985. It is undoubted fact that parties belong to very backward area of the State wherein there are no means of communication and conveyance. Witnesses are rustic villagers and it is not expected from them to be prompt to go to the Police Station and to lodge FIR, when death stalks in the house and that too in the remote area, one would not think even to file Police complaints where even medical aid is in rarity. Expectation of the defence and learned trial Judge from these witnesses to leave dead body as it was and immediately proceed to Devgadh Baria which was situated 12 kilometers for lodging a complaint is hyper technical and unreal thinking deviating from practical and real life. Witnesses have explained that for going to Police Station they were required to cross hills which were full of wild animals and therefore they waited near the dead body till next morning and did not venture to go Police Station at wee hours of the night and that they find means of communication next day an S.T. Bus, immediately they approached the Police Station. It is really disappointing and out of context that they could have travelled in a cart and reached at the earliest at the Police Station as observed by the learned trial Judge. It is not in the evidence that such poor persons were having the luxury of even cart at that juncture. Surmises and conjectures of such imagination is absolutely a wrongful thinking of the learned trial Judge on account of wrong approach to the whole prosecution case. Necessary, it is to again refer to a decision of Supreme Court in the matter of Shivraj Bapuray Jadhav and Others Vs. State of Karnataka, , wherein similar circumstances in respect of delay in filing FIR in paragraph 7 the Apex Court observed as under:

The learned Judges in the High Court were positive in their conclusion that P. Ws. 1 and 6 could have easily witnessed the occurrence as claimed by them having regard to the fact that the incident seem to have occurred very near the residential area of the huts of the deceased and the accused and the presence of P. Ws. 1 and 6, at that time was normal and nothing strange. So far as the grievance as to the belated FIR is concerned, sufficient explanation was founded to have been given. The place of incident is said to be situated in a remote area namely three kilometers away from the village itself and the village in turn itself is said to be situated in a remote area in Athani Taluk. In such circumstances, the explanation given that no one who was present at the time of occurrence could dare to leave the place in the dead of night to inform others or go to the Police Station seems to be plausible and reasonable and that only after the arrival of PW-7, another son of the deceased, at the place of incident they could send information to the police, normal and sufficiently explains the delay. Thus, the same could not be said to cast any shadow of doubt on the truthfulness of the case of the prosecution, on this account.

Therefore, we are unable to support the conclusion of the trial Court that FIR was delayed and therefore there is manipulation of the accused.

True it is that injuries received by the accused in the same incident must be explained by the prosecution in absence of which it creates doubt in the trustworthiness of the prosecution witnesses. It must be noted that this principle is not an absolute principle of law. It must be first established either through prosecution evidence or through defence that the accused had also received injuries in the same incident. What we find from the record is nothing but the accused was arrested at 3:00 p.m. on next day of the incident and there were some injuries on his forehead. According to evidence of Investigating Officer, accused reached at Police Station on next day when Investigating Officer was ready to go out of Police Station for investigation. The Panchnama was drawn of the body of the accused wherein he stated that he also had received injuries because deceased had beaten a wooden piece on his forehead. Except this, there is nothing on the record to denote that the accused had received injuries in the same incident. The statement of the accused in the said Panchnama (Exh.18) could not be accepted because when in further statement u/s 313 he was confronted with circumstances appearing against him, he has never explained this. On the contrary, his case was of total denial that the incident had never occurred. In these circumstances, it is not proved even by preponderance of probabilities that accused had received injuries in the same incident. It is not the case of the accused that soon after the incident he had reached to the Police Station. He had reached to the Police Station after 15 to 16 hours and injury was noticed on his body. Not a single question was asked by the defence in cross-examination of witnesses. It is possible that accused might have got injuries during 15 hours after the incident till he reached at the Police Station. In any case it is not the case of the defence further that accused received any injuries except in his statement and Panchnama (Exh.18) and not corroborated by the statement of the accused u/s 313 or in the cross-examination of prosecution witnesses by the defence. In such circumstances, it could not be said that prosecution was under obligation to explain injuries of the accused in absence of which case of the prosecution was not trustworthy. We are unable to sustain such conclusion of the learned trial Judge.

It is proved beyond doubt that clothes seized from the accused contain blood group of the deceased, which is evident from serological report of Forensic Science Laboratory placed at Exh.27. A group of the blood found on the clothe of the accused belong to ''A'' Group which was group of the deceased. In this regard, learned trial Judge found explanation satisfying to himself that since no blood group of the accused was ascertained and since he has injuries this evidence was not useful to the prosecution. At Exh.10-medical certificate in respect of injury of the accused is produced. Accordingly, he had CLW on frontal region of head, plain vertical in line and could be caused by hard and blunt substance. From this certificate one could not come to the conclusion firstly that the accused had such bleeding injury and the group of the blood which was on the clothe of the accused might be of accused himself. This is so because when such circumstances were put to the accused in further statement u/s 313 he totally denied that he had any blood stains on the clothes and his clothes were ever seized. It was duty of the accused to explain these circumstances and in absence of which what is proved is the blood group of the deceased was found on the clothes of the accused denoting the proximity of the accused with the scene of offence. The conclusion, therefore of the learned trial Judge in this respect appears to be utterly perverse as not to appreciate that it was for the accused to explain that how the group of blood of the deceased came upon his cloth or to explain that his group of blood, was the same as of the accused and on account bleeding injuries there were blood stains. In absence of these circumstances, only inference which can be drawn is that it is proved that the clothes were seized from the accused which contained blood group of the deceased and that was the blood group of the deceased which could not be explained by the accused, leading to the conclusion that accused was within the proximity of scene of offence. This circumstance, therefore, supports the prosecution case.

So far as the discovery of the weapon is concerned, the discovery is amply proved through the evidence of Investigating Officer and accordingly weapon is not discovered from the open space but from concealed place. Panch might have expressed in deposition in some other words, but in all respect he has supported the discovery Panchnama proved at Exh.20 and corroborated by Investigating Officer, Prosecution Witness No. 9-Chandrakant Lalluram Vora. Discovered weapon also contained blood group of the deceased. These circumstances was also placed to the accused u/s 313 of the Code of Criminal Procedure, but the accused again denied in toto these circumstances and did not explain, leading again to the inference that accused was in proximity with the weapon recovered at the instance of the accused which lends credence to the prosecution case.

Thus, as discussed above, we have scanned each reason advanced by the learned trial Judge and each conclusion arrived at by the learned trial Judge for the acquittal. None of the conclusion is sustainable as we have discussed above in detail. Only because this is an appeal against the acquittal, it is not the rule of law that it could not be interfered with. On re-appreciation of the evidence, we come to the positive conclusion that prosecution was able to prove the charge against the accused-present respondent for the offence punishable u/s 302 of the Indian Penal Code and was liable to be punished as such.

In this view of the matter, following order is passed.

FINAL ORDER

Present appeal preferred by the appellant-State of Gujarat against the acquittal of the accused is allowed. The judgment and order delivered by learned Additional Sessions Judge, Panchmahal at Godhra on 11th December, 1985 in Sessions Case No. 78 of 1985 acquitting the present respondent-Hathisinh Andersinh Parmar for the charge levelled against the accused u/s 302 of the Indian Penal Code is set aside and we come to the conclusion that prosecution is able to prove the guilt of the accused and the accused is liable to be punished for the offence punishable u/s 302 of the Indian Penal Code.

This is not the rarest of rare case as to award capital punishment. The ends of justice would meet if the minimum punishment prescribed for the offence u/s 302 of the Indian Penal Code is awarded to the respondent-accused. After careful consideration, we sentence the present respondent-Hathisinh Andersinh Parmar and the accused of Sessions Case No. 78 of 1985 for imprisonment of life for the offence proved against him u/s 302 of the Indian Penal Code.

The accused-respondent is directed to surrender before the trial Court and to undergo the sentence as afore stated within six weeks from today.