KANBI VAGHJI SAVJI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Karamshi Vasara had for sons Arjan, Nathu, Laxman and Jeran, who were living separate from each other. However Karamshi Vasaram with his wife was living with his son Nathu. Since last 4 or 5 years before the day of the incident which took place on 7-7-1963 at the village Kanatalay, Karamshi and one Bai Uji a widow had developed illcit intimacy to the extent that the fact had become the talk of the village. About 8 or 9 months before the incident Bai Uji had left Kanatalay and had gone to stay at the village Nital where she used to work in the fields about 3 or 4 months before the incident Karamshi also had left the village and went to live in Jesar where he had started a shop with one other person. They used to visit each other and sometime after both of them entered in a marriage styled as "Gharagharna marriage" with the result that Bai Uji left Natal and began to live with Karamshi at Jesar three or four days before 7-7-1963 when the incident took place Karamshi had come to Kanatalay. At about 12 noon the appellant, a son of Bai Uji and accused No. 2 armed with axes, are said to have given some blows as a result of which Karamshi fell down bleeding from the injuries on his head, etc, just at the corner of the house of one Valab Premji. Both the accused then ran away from that place Jeran, who was sitting on a chabutra nearby heard a shout "run, save" and saw the accused running away. He then went near his father and in the meantime his brother Laxman had come there from the side of their house. On Laxman inquiring of him as to who had beaten their father, he named those persons and old him about their having run away. Thereupon Laxman asked Jeram to wait there by the side of their father and he went to the place of the Sarpanch. Laxman told the Sarpanch Jayantilal about his father lying in blood shed and asked him as to what he should do. He advised him to take him home and give him some treatment. While he was at the house (Bethak) of the sarpanch, he had seen Vaghji, the accused No. 1 entering that place and sitting by the side of Sarpanch. He was found to have a Parsi-Kuhed stained with blood. Laxman thereupon returned back and finding his father serious he came to be taken to the home of Nathu within a short time Nathu had also come. The Laxman Ex. 6 and Nathu Ex. 4 went to give information about the incident to the Sarpanch both of them then informed the Sarpanch about the death of their and requested him to give a report. A report was lodged at the police station at Kundi. In the investigation by the police the person of Vaghji accused No. 1 was examined and was found to have one injury on his hand, and since some stains of blood were notice on the Paheran and Chorni, articles 4 and 5 respectively, they came to be attached. After completing the investigation of the case, the charge-sheet against both the accused was sent to the Court of the Judicial Magistrate, 1st Class, at Bhavanagar, on 22-7-1963 who after making the necessary inquiry committed both of them to stand their trial in the Court of Session at Bhavnagar for an offence punishable under section 302 read with section 34 of the Indian penal Code. The charge against both the accused was common, and it was, that in furtherance of their common intention on or about 7th day of July 1963 in village Kanatalay in Kundla Taluka, they had committed murder by intentionally causing the death of Karamshi Vasaram so as to be liable under Section 302 read with Section 34 of the Indian Penal Code. No alternative charge was framed against any of them. Both the caused pleaded not guilty to the same. On a consideration of the evidence adduced in the case the Sessions Judge found that it was accused No.1 who had committed the murder of Karamshi in the noon of 7-7-1963. Against that part of the order the accused No. 1 appellant preferred an appeal. The Sessions Judge did not find the evidence sufficient to hold the accused No. 2 guilty of the offence of murder and hence he passed an order of acquittal in respect of accused No. 2. Against that order of acquittal the State had come in appeal. (In the appeal before the High Court after elaborately considering the evidence on record and the objections thereto raised by the Asst. Govt. Pleader, his Lordship reached the conclusion that the evidence was not enough to connect the accused No. 1 with the crime in question and proceeded:-) Shelat, J. The other circumstance sough to be relied upon by him, (i.e., the Asst. Govt. Pleader, Shri B. R. Shah) was bout some swelling found on the left-hand thumb and finger of accused No. 1 when his person was examined as per the panchanama Ex. 22. The panch witness Amritlal has also spoken about it in his evidence. It was pointed out that a stick was found lying by the side of deceased Karamshi, and it was picked up by Jeram and later on produced by him as belonging to Karamshi. It was a cane-stick with iron shed, and was attached as per panchanama Ex. 24 in the case. The suggestion further is that in the scuffle between deceased Karamshi and accused No. Vaghji, the latter must have received some injury resulting in that swelling on his finger and thumb at that time. To connect that, evidence of witness Jivanlal Ex. 9 was sought to be relied upon. Jivanlal was then the Secretary of the Panchayat of Kanatalay and his evidence in that respect is that when he went to the Panchayat Office with the Chokidar Bhagwan, he met the Sarpanch, who was taking Vaghji to the Panchayat Office and he was told by the Sarpanch that "there was 'Takarar' between Vaghji and Karamshi, and they had to keep Vaghji in the Panchayat Office". So he opened the office, and Vaghji was made to sit in one room by the Sarpanch. He has then said that when Vaghji and Sarpanch were coming he had a seen Vaghji carrying an axe which was stained with blood. This latter part of the statement cannot mean to suggest that Vaghji was found with the axe. All that it meant was that when they left the house of Sarpnach since Vaghji was suspected in the crime, he must have been asked to pick up that axe as it was also to be taken in one of the rooms of the Panchayat Building. The Sarpanch would not pick it up, and it is natural that he would ask Vaghji to take it to that place.

(2.) With regard to the other part of evidence of Jivanlal, a strong objection was raised by Mr. D. K. Shah, the learned advocate for the accused, saying that apart from considering the reliability or otherwise, or effect of that statement in the case, it is inadmissible in evidence, in law it is essential, therefore, to examine the point of law raised by him, and more so, as it often comes up for consideration in criminal cases it was contended that such a piece of evidence can only be of any consequence if the Sarpanch in the present case is shown to have spoken to him an d has given evidence in that respect, as otherwise it would be in the nature of hearsay type of evidence which is inadmissible in law. Now, evidence can either be oral or documentary, as contemplated in section 3 of the Indian Evidence Act . Chapter III of Evidence Act relates to oral evidence. All facts except contents of documents may be proved by oral evidence, and under Section 60 of the Act, oral evidence must, in all cases, whatever be direct, that is to say, if it refers to a fact which would be seen, it must be the evidence of a witness who saw it; and if it refers to a fact which could be heard, it must be the evidence of a witness who says he heard it. It is no doubt true that if Jivanlal's evidence was a particular fact, viz, about Sarpanch having told that there was a scuffle between Karamshi and Vaghji, and if that fact about Sarpanch saying so, were at issue, it can be taken as proved as he had heard the Sarpanch saying so, in view of section 60 of the Indian Evidence Act. But if Sarpanch had referred to a talk he had with some other person such as the accused No.1 saying that he had scuffle or fight with deceased Karamshi, the person who heard it so said, viz, the Sarpanch can speak about it and that would be direct oral evidence in respect of that fact, and if he then spoke to some third person and the third person so saying in Court, would become hearsay type of evidence as it would not fall under section 60 of the Indian Evidence Act with regard to the fact sought to be established in the case. Now such evidence can become admissible under section 157; of the Indian Evidence Act, inasmuch as it is sought to corroborate the testimony of a witness who had so told him as in this case to Jivanlal. Bu that can arise only if the Sarpanch's evidence of such fact is to be corroborated. If, therefore, the Sarpanch does not refer to any such talk he had with accused No. 1 in his evidence before Court, there cannot arise any question of corroboration, and Section 157 of the Indian evidence Act, cannot come into play for admitting such evidence. Now, in this case the Sarpanch is said to have spoken to witness Jivanlal about his having learnt from the accused No. 1 that there was a scuffle between accused No. 1 and deceased Karamshi. Unfortunately, the Sarpanch has not been asked any question about his having spoken what Jivanlal has said in his evidence. It is the evidence of Sarpanch which would primarily be the evidence of a person who heard about the scuffle having taken place between Karamshi and Vaghji , and when he does not say any such thing the evidence of Jivanlal in that respect would become inadmissible, as neither falling under Section 60 nor under Section 157 of the Indian Evidence Act, inasmuch as that fact is concerned. Besides, in absence of any evidence given by that Sarpanch in respect of any such statement made by Jivanlal in his evidence, it can have no evidentiary value. In a case of Awadh Behari Sharma v. State of Madhya Pradesh, AIR 1956 SC 738, a similar question had arisen. In that case one witness Guard averred about this haying been informed by another witness Mukadam that the new porter had lowered the signals and that the down train had collided with the stationary up train. The witness Mukadam who had so informed witness Guard was not asked any such questions about his having so spoken to witness Guard, and as to what would be the effect of such evidence given by witness Guard, and as to what would be the effect of such evidence given by witness Guard. Their Lordships of the Supreme Court held that in absence of such evidence, and at any rate, in absence of such opportunity being given to that witness Mukadam for giving evidence in that direction, it would be inadmissible in evidence. They also held that no evidentiary value can attach to such evidence of that witness as the very source from which it emanated was not asked about it. No attempt was made to ask the Sarpanch in that direction, and in fact, it was not attempted to have that Sarpanch recalled as he was already examined before Jivanlal and to speak about it. If that part of the evidence of Jivanlal was a considered to be of importance as is sought to be relied upon, the prosecution should have attempted to get such evidence from hi would render that part of the evidence inadmissible and would take away he effect of the evidence of such a witness in the case.

(3.) Apart from that consideration, the accused was not examined by the Medical Officer soon after his arrest to ascertain the nature and age of that injury found on his person and in absence of as to how old it could have been, it cannot be held that he received that injury in the scuffle between him and Karamshi. In fact, there is no evidence and even Jeram does not say that he had seen his father having caused injury to accused No. 1 at the time of that incident the accused No. 1 has also explained it by saying that he had got that injury while ploughing his filed that circumstances has neither the basis nor any substance to suggest any scuffle having taken place between them as suggested in the case.