KOLI NANA BHANA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) We are conscious of the fact that the learned trial Judge had an additional advantage of seeing the witnesses when they gave evidence before him and therefore due weight should be attached to the view taken by the learned trial Judge so far as the oral evidence of these witnesses is concerned. But simply because the learned trial Judge had that advantage and simply because he has found these witnesses to be reliable that should not deter us from disbelieving them in the circumstances of this case. The evidence of a witness has to be judged mainly and broadly on the strength of the nature of the evidence he has given in the case and not on so much as to how he has been able to impress the Court while in the witness box. On considering the evidence of these witnesses as a whole we are inclined to take the view that it will be unsafe to place reliance upon these witnesses and hold that these accused or any particular accused out of these accused was responsible for this incident.

(2.) Before parting with this case we are constrained to observe here that the learned trial Judge while recording the evidence of two minor witnesses made a note at the top of the deposition of each of the two witnesses that on making necessary inquiry he was satisfied that those two witnesses understood the sanctity of oath. The learned trial Judge has not kept any record as to what inquiry he made in this regard. He has not kept any record as to what questions he put to the witnesses and what replies were given by the witnesses during that inquiry and what further inquiry if any he made in that regard. It was necessary for the learned trial Judge to have kept a record of this inquiry qua each minor witness and should have recorded reasons in brief so as to enable the appellate Court to know as to how the learned trial Judge came to the conclusion that the two witnesses understood the sanctity of oath.

(3.) The learned trial Judge has at more than one place while discussing practically the evidence of each of the eye-witnesses made observations as regards the demeanour of the witnesses. Section 280 of the Criminal Procedure Code 1973 corresponding to Section 363 of the old Cri. Pro. Code of 1898 lays down that when a presiding Judge or Magistrate has recorded the evidence of a witness he shall also record such remarks (if any) as he thinks material respecting the demeanour of such witness whilst under examination. The provisions of Section 280 thus show that the remarks have to be made at the foot of the deposition of each witness and not in the judgment as done by the learned trial Judge. A Division Bench of this Court in the case of State v. Mangalsinh Keshubha 11 G.L.R. 258 had an occasion to come across such a situation. In that case also the learned Sessions Judge had not made any observations or note at the foot of the deposition of the witness but had made the following observations in his judgment: I have seen the demeanour of the witness in the witness box. He appeared to be a simple unsophisticated person. He was giving his deposition in a very straight forward manner without mincing words. As a matter of fact it appeared to me that he was incapable of mincing words. We need not burden this judgment by repeating what has been observed at para 27 of the Report of the above judgment. We are in respectful agreement with the observations made therein and would like to impress upon the judicial officers to carefully go through that judgment and bear in mind the observations made in that case at para 27 of the Report. As observed by this Court in the case of State v. Mangalsinh Keshubha (supra) at para 27 of the judgment normally speaking such remarks may be of some value in case they are adverse against the witness but they do not carry the same if they are not adverse and made with a view to strengthen the view taken about the evidence of such a wtiess. If a witness deposes in a straight forward manner does not avoid giving replies does not take time to give replies then there is nothing unusual and no remarks are required to be made. It is only when a witness tries to avoid giving replies takes time to give replies or exhibits any such abnormal conduct then it may be necessary to make some remarks in a given case and that too while the witness is under examination as laid down in Section 280 of the Code. We would therefore like to impress upon the judicial officers not to make any such remarks which are likely to create an impression in the mind of the appellate Court that such remarks have been made with a view to strengthen the view taken about the evidence of a particular witness or witnesses. We may mention here that in the present case even though the learned trial Judge as stated a little earlier did not maintain any record of the questions put to the minor witnesses while ascertaining their capacity to understand the sanctity of oath he has even taken into consideration the demeanour of the minor witness Savita at the time of giving replies to the question put to her during that inquiry at the time of appreciating her evidence.