VISHAL RAJENDRA TRIVEDI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) . The question of indeed, quite great importance that arises for consideration in this appeal is - "Whether the prosecution witness who having once been examined through and through before the trial Court, and quite relying upon his evidence and also alongwith that of others, if the trial Court has reached the conclusion that the prosecution has proved its case beyond doubt, much less the reasonable doubt to hold accused guilty for the alleged offence punishable under Sec. 302 of I. P. Code sentencing him to life, then whether under such undisputable circumstances it would be just, legal and proper for this Court to recall and examine the very same witness as Court witness and/or at the instance and on an application of the appellant-accused under Secs. 311 and 391 of the Cri. P. Code 1973, made by the convict-prisoner because as submitted the same was likely to change the very nature and complexion of the offence alleged against him and ultimately thereby modify and alter the quantum of sentence that may be passed against him ?" The background and context in which this question arises is set out as under :

(2.) . To briefly narrate, the prosecution case as summed up in Charge Exh. 2 it is to the effect that the incident in question wherein the appellant Vishal Rajendra Trivedi aged 18 years killed his step-mother Smt. Lata by giving three successive knife blows, in the house itself situated at Gokulnagar Society, Dakor, took place on 18-7-1993 at 12-00 noon. The eye-witnesses to this incident were (1) P.W. 2 - Rachna Rajendra, and (2) P.W. 5 - Prithvik Rajendra (child witness aged 12). On the basis of this allegation, F.I.R. Exh. 9 was filed by P.W. 2 - Rachna Rajendra, which was recorded by P.W. 10 P.S.I. Dashrathsinh Parmar of Dakor Police Station at 12-55 P.M. At the trial, the accused pleaded not guilty and claimed to be tried. It appears that as the accused was unable to engage a private Advocate, he was given the legal aid, and was defended by the learned Advocate Mr. P.M. Mistry. The trial Court accepting and relying upon the prosecution evidence brought on the record, by its judgment and order dated 28-11-1994, convicted the accused Vishal for the offence punishable under Sec. 302 I. P. Code, and sentenced him to imprisonment for life, and to pay a fine of Rs. 5,000.00 and in default to undergo further S. I. for 15 days, giving rise to the present Misc. Criminal Application, which we have admitted and with the consent of learned Advocates appearing for the respective parties, decided to hear and dispose of the same today.

(3.) . Earlier when the appeal came up for admission before us, at the request of learned Advocate Mr. F. B. Brahmbhatt, we had directed the Superintendent, Junagadh District Jail, to keep the appellant-accused present before us, as he wanted to take some instruction from him as this was an appointed matter. Accordingly, appellant-accused is produced before us today. At the time of admission, it was frankly submitted before us by the learned Advocate for the appellant that he was not in a position to assail the factum of the incident and involvement of the appellantaccused in stabbing his step-mother Lata to death. However, having regard to the facts and circumstances of the case, according to Mr. Brahmbhatt, this appears to be more or less a case of suppressed grave and sudden provocation, where the accused ultimately losing temper, in grave and sudden provocation unfortunately stabbed Lata. To bring home this point, he intends to rely upon the affidavit of the father of accused Vishal, viz., P.W. 4 Rajendra Ramanlal Trivedi, which clearly goes to indicate that no doubt, he had stabbed his mother, but having regard to the facts and circumstances of the case, the offence would be either the one under Sec. 304 Part-I or Sec. 304 Part-II of the I. P. Code. Mr. Brahmbhatt, under the circumstances, further submitted that the appellant should be given a reasonable opportunity to bring on record the tell-tale material, in order to place the correct facts, truth on the record so that the Court can re-examine the entire case in the said light, and reach its own just decision. It was pointed out by Mr. Brahmbhatt that at the trial, the accused was given legal aid.