BALU RAMU MACHHI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Balu Ramu Machhi the appellant in this appeal challenges the judgment of the learned Additional Sessions Judge Surat whereby the learned Additional Sessions Judge convicted him of the offence punishable under sec. 302 I.P.C. and sentenced him to suffer imprisonment for life.

(2.) The facts of this case as alleged by the prosecution may be briefly stated as follows :-

(3.) The evidence of this Bhogilal before the Court is that when he went to the fair he saw the accused and the deceased going towards the river when he was standing near the merry-go-round. His say in his evidence further is that when he went to the spot where Dineshchandra was lying dead he saw Balu running away. The evidence of the Police Officer Natvarlal Veljibhai which we have discussed a little above shows that this Bhogilal did not state before him that when he was standing near the merry-go-round. he saw the accused and the deceased going towards the riverbed or that he had seen the deceased and the accused going ahead of hint in the fair. This would naturally create an impression that the witness had not stated before the Police Officer at all about seeing the accused and the deceased before the actual incident. The learned Additional Sessions Judge in his judgment at para. 16 referred to the police statement of this witness and observed that the witness has stated therein that he had seen the accused and the deceased going together and I that he had seen the deceased lying and that he had seen the accused running away. It is not understood how the learned Additional Sessions Judge referred to the police statement of this witness. A statement of a witness which is recorded by a Police Officer during the course of investigation can be used only for a limited purpose as laid down in sec. 162 of the Criminal Procedure Code. With a view to find out whether there was any such omission altogether in the statement of the witness recorded by the Police Officer we have looked into a copy of the statement of this witness recorded by the Police Officer which is in the file of police papers in the record of the trial Court. It appears from the said statement of Bhogilal as recorded by the Deputy Superintendent of Police that the Witness has not stated therein that he saw the deceased and the accused going towards the river when he was standing near the merry-go-round and he has also not stated that before that he saw the accused and the deceased going ahead of him. It appears from the said statement that the witness has stated therein that when he was going back towards his home from the fair at about 1 P.M. to 1-15 P.M. he saw the accused and the deceased passing on the road by the side of the shop of Gaman Ghanchi and going towards the merry-go-round and when he was passing in front of the shop of Ghanchi sometime thereafter he saw people running towards the river from the merry-go-round and so he also went there and saw Dineshchandra lying there in injured condition on the road. He has also stated therein that at that time he saw Balu Ramu running away towards the house of his brother Nagin. This is what is stated by the witness before the Police Officer. It would thus appear that the witness did not omit to state altogether about his having seen the accused and the deceased together before the incident. The only difference between the statement before the police and the statement before the Court is that while before the Police Officer the witness stated that he saw the accused and the deceased passing on the road in front of the shop of Gaman Ghanchi and going towards the Chagdol he stated before the Court that when he was going towards the merry-go-round the accused and the deceased were going ahead of him and that when he was near the merry go-round. he saw the deceased and the accused going towards the river. The difference if any is as regards the spot where the witness was standing when he saw the accused and the deceased together. The distance between the merry-go-round and the shop of Gaman Ghanchi is hardly about 50 paces. Bhogilal Maganlal himself has stated in cross-examination that the merry-go-round was about 50 paces away from the shop of Gaman Ghanchi. It cannot be said that there was any such contradiction between the say of this Bhogilal before the Court as compared to his say before police as regards the spot from where he saw the accused and the deceased going together. It cannot be said that Bhofilal has made any substantial improvement in his version while giving evidence before the Court so far as this aspect is concerned. Similarly the witness stated before the Court that he saw Dineshchandra lying on the ground having bleeding injuries and then he saw Balu running away and then he informed his brother. He was asked whether he stated before the Police Officer that he saw Balu running away after he saw the dead body and he stated that he did not recollect. The evidence of Natverlal Patel Ex. 39 shows that the witness did make such a statement before him. We fail to understand what is the contradiction between these two statements. Even in his deposition before the Court he states that he saw Dineshchandra lying on the ground having bleeding injuries and then he saw Balu running away. In fact there is no contradiction at all and it is not understood why such a question was put to the witness and permitted by the learned trial Judge. So far as the earlier contradiction about the spot from where the witness saw the accused and the deceased is concerned the question was put to the witness in such a way as to create an impression that he had not made any statement before the Police Officer about his having seen the accused and the deceased together before this incident. On having looked at a copy of the statement it appears that it is not so The learned trial Judge of course committed an error in referring to the police statement while writing his judgment. In fact it was his duty to have looked at the police statement when the omission was sought to be put to the witness when he was in the box. The question as put to him ought not to have been allowed to be put. In fact the question should have been put to the witness that he had not seen the accused and the deceased going ahead of him and had not seen the accused and the deceased going towards the river bed from the merry-go-round and had not made such a statement before the Police Officer but had made a contrary statement before the Police Officer to the effect that when he was returning home from the fair he saw the accused and the deceased a going towards the fair passing on the road by the side of the shop of Gaman Ghanchi. Anyway on having a look at the statement of this witness recorded by the Police Officer we are inclined to say that there was in fact no omission in the police statement as suggested in cross-examination but there was a contradiction as pointed out above. It would probably amount to an omission if there was a time lag or a considerable distance between the two spots. Here. there is practically no timelag and the distance between the shop of Gaman Ghanchi and the merry-go-round is only a very short one. As stated earlier in view of this it can only be said to be a minor and insignificant contradiction but certainly not an omission. .. .. .. ..