BHARWAD BHUTA BACHU Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Before we enter into appreciation of the evidence in particular the evidence of the solitary eye-witness Chandulal Bhurabhai (P.W.1 Ex. 10) it is necessary first of all to keep in forefront the basic guiding principles as to how and in what manner the evidence of the solitary eye-witness who over and above being the relative of the deceased was found to be inimically disposed to the accused was required to be appreciated Now there is no and indeed there cannot be any such straight jacket law which warrants that the evidence of highly interested witness like the one in the instant case can never be accepted and relied upon straightway discarding the same from consideration on the count of being solitary and of highly interested witness At the most the Rule of Prudence warrants that before any implicit reliance is placed on such type of witness his evidence should be subjected to a very close and minute scrutiny and thereafter in the event of necessity only the court may insist upon the corroboration from some independent source. In fact in a given case depending upon the overall facts and circumstances of that case if the judicial conscience feels so satisfied about the truthfulness and the sterling quality of such a witness then even on his uncorroborated testimony the order of conviction and sentence can reasonably be passed However in case on close and minute scrutiny if it is found out that the evidence of the solitary eye witness was either intrinsically false and/or inherently improbable and/or bristiling with some material improvements omissions and contradicitons then no amount of corroboration can ever restore the lost credibility back into the evidence of such witness so as to inspire confidence of the court any more. The sum total of the above discussion is only this that the accused UNDOUBTEDLY can be convicted on the basis of the sole testimony of solitary eye-witness like the one in the instant case provided the same is found to be otherwise wholly dependable. In fact whenever the court is poised with a problem of deciding whether the evidence of such a highly interested solitary eye witness should or should not be accepted whole-hog for convicting the accused it must invariably ask unto itself the following three questions namely - (i) whether the evidence of such a witness in the background of overall facts and circumstances of the case inspires any confidence ruling out any risk whatsoever of false and illegal implication of innocent person ? (ii) whether the evidence of such a witness though not wholly unreliable but at the same time is such which needs some further independent support in order to base the order of conviction and sentence so as to rule out some possible error relying upon the said witness ? and (iii) whether despite any amount of corroboration forthcoming the very nature of the evidence of the witness is such which cannot help the prosecution any further ?

(2.) Now keeping in mind the aforesaid principles let us examine the evidence of Chandualal Bhurabhai (P.W.1 Ex. 10) on whose sole testimony depends the fate of the prosecution case. In this regard Mr. Rajesh Dave the learned Advocate for the accused first of all has invited our attention to the admission made by the complainant in para-8 of his cross- examination wherein it has been started to the effect that his attention was drawn towards the scene of incident after Sanjay shouted and that Sanjay shouted after the knife blow was given to him Mr. Dave on the basis of this admission given out by the complainant submitted that at the point of time when the actual knife blow came to be inflicted on Sanjay his attention obviously could not have been focused on Sanjay He further submitted that the incident in question had taken place at night time and the complainant was sitting at quite some distance in company of 3 to 4 persons obviously relaxed and gossipping and therefore in that view of the matter if admittedly only after hearing the shouts of Sanjay his attention was drawn towards the scene of offence then it is difficult to accept his bald assertion that he had seen Bhuta Bachu giving knife blow to Sanjay. Obviously such an inherent improbability and self-contradiction smacks of absolute inimical interest of the complainant in falsely implicating as many as five accused persons belonging to one family in serious charge of murder. Under such circumstances it would be highly unsafe to blindly trust and rely upon the assertions of the complainant that he has seen five accused encircling Sanjay and in process Bhuta Bachu giving knife blow to him. Further according to Mr. Dave the interested version of this witness does not rest here only as he has surprisingly changed the place where the actual incident took place. While giving evidence before the court this witness has staled that the incident in question took place at the distance of some three-four steps on road from the shop of Mohan Vithal (P.W.7 Ex. 16) when Sanjay walked out few steps after reading the newspaper. As against that in his earlier statement at Ex.55 this witness has staled that the incident in question took place in the Chowk near the shop of Batuk Govind. When this witness was confronted with his earlier statement at Ex.55 before the police he in his cross-examination denied to have staled so. This contradiction has been proved and brought on record in para-13 of cross-examination of the Investigating Officer-Jalvania (P.W. 17 Ex. 54). This witness has further submitted that the door of the shop of Batuk Govind and Mohan Vithal were facing altogether on different directions. In that view of the matter there is no possibility of reconciling this altogether two different locations by saying that since the said two shops were adjacent it was only by way of some possible error in description that the witness came to commit some bona fide mistake in describing the place of incident. Further taking into consideration the evidence of Mohan Vithal (P.W.7 Ex-16) he has admitted that on the date of incident at about 9-45 p.m. after reading the newspaper when Sanjay walked out of his shop he heard some hubbub. However he has not seen what has happened. This witness in the cross-examination has also admitted that if anything happens near his shop nothing could be seen from the said Otta - a place obviously from where the complainant actually claims to have seen the incident. Now neither the prosecution has declared this witness hostile nor has proved in any other manner that whatever has been staled by him before the court was incorrect. Not only that but the Investigating Officer-Jalvania (P.W.17 Ex.54) in Para-15 of his cross-examination has admitted that except the place opposite the shop of Batuk Govind no other place was shown to him as the place of incident. When such is the state of affairs it becomes extremely difficult to believe that the witness Chandulal Bhurabhai has in fact seen the actual incident.

(3.) The types of confusion referred to above is also carried further by this witness when he in para-3 of his examination-in-chief stated before the court that his complaint Ex. 55 came to be recorded on 16-6-1986 at about 1-00 to 2-00 a.m. at the hospital when PSI contacted him which is contrary to his evidence in cross examination wherein quite surprisingly he has stated that - the doctor from the hospital had telephoned the police and therefore the complaint was given at the police station. A the police station there was some Jamadar but he did not know as to who he was. His complaint was taken down by the Fojdar and that he had gone of his own to Upleta police station for filing his complaint at about 12-30. Now once again it is too difficult to reconcile these two different situations regarding filing of the same complaint Ex.55 at two different places. On this point the I.O. Jalvania (P.W.17 Ex.54) has categorically stated that on receipt of the message regarding incident he had gone to the hospital where the complainant Chandulal Bhurabhai (P.W. 1 Ex. 10) who was present near the post-mortem room had given his complaint Ex.55 in the tube-light which was taken down and signed in his presence. Further assuming that this witness had also given some other complaint at the police station but then since it is not forthcoming before the court it can as well as said that the same is not produced as probably it was not supporting the prosecution. Be the case as it may the circumstance appearing on record make it explicitly clear that the complainant for whatever reason is not sticking to this original version regarding the place where the complaint was given by him.