STATE OF GUJARAT Vs. SENMA SAVABHAI BHIKHABHAI

JUDGEMENT

(1.) IF the aforesaid circumstances can be said to be perfectly proved and the chain of circumstances becomes complete so as to leave no manner of doubt that somebody else was the killer we would have no hesitation to allow the appeal and to convert the acquittal of accused No. 2 into conviction for the offence under Section 302 IPC, but we have come across some additional facts and circumstances which dissuade us from adopting the aforesaid course. On reading the unusual observations of the learned Judge about the possibility of the clothes of accused No. 2 being stained with blood due to contact with the clothes of the deceased Bai Viri, we were impelled to satisfy our conscience by looking at the police papers. We found that statements of a large number of witnesses had been recorded by the police including the statements of Suvabhai, minor son of accused No. 1. Ambaben, mother of the accused, and Narmada, wife of accused No. 1. It cannot be ignored that the name of Narmada was mentioned in the FIR as well as in the oral evidence of Ramabhai Ranchhodbhai as a person who had been harassing the deceased Bai Viri, apart from accused No. 1. Still Narmadaben was not mentioned as an accused in the charge-sheet. The statements of these three witnesses were recorded on the very next day. These statements amply justify the doubt expressed by the learned Judge and puts us into a painful frame of mind and we are constrained to observe that though the acquittal of accused No. 2 should not be disturbed the real culprit in this case of circumstantial evidence has escaped scot-free and perhaps the situation might have been saved if the police and the Prosecutor had discharged their duties more conscientiously. We are conscious of the fact that the statements before the police cannot be used as evidence, but in the present case, the material witness like Ambaben who was the mother of the accused and Narmadaben who was the wife of accused No. 1 were dropped by the learned A.P.P. along with other witnesses without mentioning any reason for doing so. It cannot be gainsaid that the decision to drop the prosecution witnesses, whose statements have been recorded by the police has to be justified by some reason even though in a cursory form, and even the court is under a duty to ask the prosecutor as to why the witnesses have been dropped. It may be that some witnesses may not be supporting the prosecution case at the last moment; it may be that some witnesses may be facing an embarrassing situation and they may not be ready to depose at all, but in case of only circumstantial evidence it becomes the duty of the prosecution to examine such witnesses as may be able to throw any light on the alleged genesis of the case, even though they may not be ultimately supporting the prosecution. IF prosecution decides to drop such witnesses it becomes the court's duty to ask the prosecutor why such witnesses have been dropped. We are constrained to observe that in cases of circumstantial evidence, the court must take initiative to summon and examine material witnesses in order to bring the relevant circumstances on record if the prosecution is not prepared or does not want to discharge its duty to examine all material witnesses, particularly because of the frequent criticism that the prosecution is merely an impersonal agency which is likely to be as lazy, weak or dishonest as any other public institution not run by private enterprise. This duty of the court is reflected in Section 311 of the Code of Criminal Procedure.

(2.) ANOTHER circumstance which has dissuaded us from altering the acquittal rendered by the learned Additional Sessions Judge is a some what dishonest investigation carried out by the police. The offence is alleged to have been committed at about 6.00 or 6.30 p.m. on 19-11-83. The Panchanama of arrest and recovery of clothes of accused No. 2 is alleged to have been made at about 6.00 P.M. on the next day on 20-11-83 and this panchnama is relating to the three clothes specified above as found on the person of accused No. 2. This is a clear attempt on the part of the investigation Officer to inculpate accused No. 2 in a serious offence of murder. It is absolutely unnatural that accused No. 2 would keep the three blood stained clothes on his body for a period of 24 hours even though he had an opportunity to remove those clothes and put them aside somewhere else : particularly when it is alleged that the knife was concealed somewhere else. This attempt on the part of the investigating Officer deserves to be condemned particularly in the background of the statements recorded by him showing that the accused No. 2 was in no way connected with the offence, but it was accused No. 1 and his wife who had been harassing the victim Bai Viri. That is why we again refer to the fact that perhaps the decision to drop the witness Ambaben, mother of both the accused, who would have thrown a flood of light in locating the guilt was erroneous. We, therefore, bring this fact regarding the conduct of the Investigating officer to the notice of the Home Department for taking appropriate action as may be permissible. We also bring it to the notice of the Legal Department to impress upon all the Public Prosecutors not to drop material witnesses without justification, particularly in cases of circumstantial evidence. [10. and 11. xxxxx] Order accordingly.