CHAUDHARI RAMJI BHAI NARASANGBHAIversusSTATE OF GUJARAT AND ORS.

A                 CHAUDHARI RAMJJBHAI NARASANGBHAI
                                           v.
                         STATE OF GUJARAT AND ORS.

                               NOVEMBER 10, 2003.

B              [DORAISWAMY RAJU AND ARIJIT PASA YAT, JJ.]


         Penal Code, 1860-Sections 304 Part II, 325 and 447-Conviction
    under-Acquittal by trial court-Conviction by High Court-Correctness of-
C   Held: Order of High Court does not suffer from any patent error of law or
    perversity of approach and total lack of evidence to warrant interference.

        Evidence Act, 1872--Section 145-Applicability of-Held: Applicable
  when same person makes two contradictory statements-When there is alleged
  contradictions between one prosecution witness vis-a-vis statement of other
D witness no adverse inference can be drawn.
          Criminal Trial :

          Witnesses-Testimony--Evidentiary value of-Held : When particular
    facts established by testimony of trustworthy and reliable witnesses, it need
E   not be further proved through other witnesses as it would amount to multiplicity.

           Related witness-Evidentiary value-Held: Related witnesses evidence
    is not discarded if it is reliable-Cautious and careful approach is required--
    Also the Court is to appreciate evidence in light of other evidence on record.

F         According to the prosecution, complainant's uncle's son-appellant
    and respondent No.2 and 3 armed with weapons entered the field of the
    complainant and attacked his father, brothers and caused them injuries.
    The motive of the incident was enmity between the parties. At the time of
    the incident complainant was near the place of occurrence and he
    witnessed the incident, and lodged an FIR. Injured persons were taken to
G   the hospital. Complainant's father succumbed to his injuries. Complainant,
    his mother, his brothers were examined. Defence version was to the effect
    that the incident did not take place in the field but the complainant's side
    had gone to the narrow road leading to the field and obstructed the cart
    and in the scuffie complainant's father fell down and bullock cart ran over
H                                         390
                    C.R. NARASANGBHAI v. STA TE OF GUJARAT                  391
     him. Trial Court held that their testimony is not trustworthy and reliable     A
     as there was material contradictions between the evidence of different
     witnesses and acquitted the accused. High Court set aside the acquittal
     and convicted the appellant and respondents 2 and 3. Respondents 2 and
     3 were granted benefit of probation. Hence the present appeal.

           Appellant contended that the prosecution has suppressed the genesis      B
     of the dispute and its version lacks credibility; that though the witnesses
     have stated the weapon of assault to be a 'kudal', there is no mention in
     the evidence of the complainant about the said weapon which was allegedly
     used; that the post mortem report and the medical evidence completely
     rule out the oral evidence about the use of 'kudal'; that the prosecution      C
     had a duty to obtain clarification regarding the side of weapon used; that
..   the contradictions highlighted by trial Court related to the ocular evidence
     and the medical evidence and not contradictions between the evidence of
     different witnesses; that when the benefits of probation were extended to
     the two co-accused persons there was no plausible reason to adopt a
     different standard with regard to the appellant                                D
           Respondent-State contended that the trial Court had acted on
     impermissible premises without keeping in view the correct position in law;
     that the factual position was also not properly analysed; that though the
     co-accused persons have been granted benefit of probation, and no appeal
     has been filed challenging that part of the High Court's judgment; and         E
     that the appellant cannot take advantage of grant of probation as his
     definite role in the crime was established and he was the main brain behind
     the crime.

          Dismissing the appeal, the Court
                                                                                    F
           HELD : 1. High Court has applied the correct principles in law while
     directing conviction of appellant by reversing judgment of acquittal passed
     by the trial Court The conclusions arrived at are not shown to suffer from
     any patent error of law or perversity of approach and total lack of
     evidence to warrant interference. (399-E)                                      G
          2.1. High Court found that the trial Court's approach was erroneous.
     It was of the view that if a particular fact stands established by the
     evidence of trustworthy and reliable witnesses, the record is not to be
     burdened by examining other witnesses for proving the same fact as it
     would amount to multiplicity only. Even if a witness is related to the         H
    392                     SUPREME COURT REPORTS (2003] SUPP. 5 S.C.R.

A deceased there is no reason to discard his evidence if he is reliable and
    trustworthy. The cautious and careful approach is required in appreciating
    the evidence because a part of the evidence might be tainted owing to the
    relationship and the witnesses might be exaggerating the facts. In such
    an event, the Court is to appreciate the evidence in the light of other
    evidence on record which may be either oral or documentary. In the
B   instant case, the presence of the informant was not challenged in the cross
    examination. The incident was admitted by the accused persons and their
    presence at the time and place of occurrence was also not under dispute.
    The presence of the deceased and the injured was also not disputed. The
    informant was examined at length and the High Court noticed that nothing
C   infirm was brought out by such cross-examination. The evidence of
    informant's mother was also held to have corroborated the evidence of
    the complainant and the blind witness. (395-G-H; 396-A-q

          2.2. Regarding the actual place of occurrence, the High Court has
    analysed the factual position and with reference to the evidence of the
D   informant noticed that there were hedges all round the field on four sides
    which improbabilises the defence version, though it had found favour with
    the trial Judge. The COl\!!istent evidence of the prosecution witnesses is that
    the deceased was sweeping under the peepal tree. They did not say that
    he was near the tree, which seems to be the defence stand. [397-8-D)
E         2.3. With regard to the injuries found on the deceased, they were
    not in the middle of the body but on the side. From the evidence, it is clear
    that those were possible if assaults were made when the deceased was
    moving. (397-D)

F        Ha/tu and Ors. v. State ofMadhya Pradesh. (1974[ 4 SCC 300; Ba/aka
    Singh and Ors. v. The State of Punjab, [1975) 4 SCC 511 and Gurmej Singh
    and Ors. v. State of Punjab, (1991) Supp. (2) 75, referred to.

          2.4. The plea that it was the duty of the prosecution witnesses to
    clarify the side of the weapon used cannot be accepted, when the direct
G   evidence sufficiently establishes the assaults. In any event, t~e brother
    injured during the incident has stated that the blunt side of the weapon
    was used. [398-G-H(

         2.5. The plea that the contradictions noticed by the trial Court were
    ocular vis-a-vis the medical evidence cannot be accepted. Section 145 of
H   the Evidence Act, 1872 applies when same person makes two contradictory
               C.R.NARASANGBHAI v.STATEOFGUJARAT [PASAYAT, J.]                   393
      statements. It is not permissible in law to draw adverse inference because         A
      of alleged contradictions between one prosecution witness vis-a-vis
      statement of other witnesses. It is not open to Court to completely demolish

.
.,,
      evidence of one witness by referring to the evidence of other witnesses.
      Witnesses can only be contradicted in terms of Section 145 of the Evidence
      Act by his own previous statement and not with the statement of any other          B
      witness. [399-A-B)

            Mohan/a/ Gangaram Gehani v. State of Maharashtra, AIR (1982) SC
      839, relied on.

           2.6. Regarding non-examination of alleged independent witnesses, the          C
      eye-witnesses have categorically stated th.at no other person was present
      on the field to witness the incident. [399-D-E)

            CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
       183 of 1997.

           From the Judgment and Order dated 10.10.96 of the Gujarat High                D
      Court in Cr!. A. No. 1234 of 1984.

           Sushil Kumar, George Paulose and Adolf Mathew for Ms. Meenakshi
      Arora for the Appellant.

            Maullick Nanavati and Ms. Sadhana Sandhu for Ms. Hemantika Wahi              E
      for the Respondents.

            The Judgment of the Court was delivered by

             ARIJIT PASA YAT, J. Appellant questions correctness of the judgment
       rendered by a Division Bench of the Gujarat High Court setting aside the          F
       judgment of acquittal passed by the trial Court and convicting the appellant
       for an offence punishable under Sections 304 Part II, 325 and 44 7 of the
       Indian Penal Code, 1860 (in short the '!PC') and sentencing him to undergo
       rigorous imprisonment for a period of 5 years, 3 years and 2 years respectively
       with a direction that the sentences to run concurrently. Two other persons        G
       who are respondents 2 and 3 in this appeal had also faced trial with the
       appellant. They were acquitted by the Trial Court, but convicted by the High
       Court. They were, however, ordered to be released on probation of good
       conduct and behaviour for a period of 3 years instead of sentencing them at
      ·once.
                                                                                         H
    394                     SUPREME COURT :~EPORTS [2003] SUPP. 5 S.C.R.

A         Prosecution version as unfolded dJring trial is as follows:

         The complainant Madhevbhai Veljibhai (PW-4), one of the injured
  witnesses filed the first information report stating that on 28.4.1983 a.m. his
  father Veljibhai Bhavsang (hereinafter referred to as the 'deceased') along
  with his elder brother Cheljibhai (PW-6) and younger brother Kanjibhai (PW-
B 7) were working on their Vadvalo agricultural field situated in the outskirts
  of Magroda village. At about I0.00 a.m. the complainant went on to a well
  to take bath. After taking bath and washing clothes, he was trying to dry his
  clothes. At that time his father the deceased was sweeping leaves under a
  Peepal tree and his brother Chelji (PW-6) was sitting near the well whereas
C his younger brother Kanji (PW-7) was bathing cows at the place where they
  were grazing. At about 11.00 a.m. his cousin brothers (uncle's son) Chaudhari
  Ramji Narsang (A-1 (Appellant no.I) armed with hoe, Chaudhari Bababhai
  Narsang (A-2) (Respondent no. 2) armed with stick and Chaudhari Bai Suraj
  (A-3) (Respondent No. 3) armed with log entered the field and started
  assaulting his father. It was alleged that accused-appellant Chaudhari Ramji
D Narsang gave two blows with hoe on the head of his father as a result of
  which he raised some cries. As a result of injury, he was having profused
  bleeding. On hearing cry, his brother Chelji (PW-6) and Kanji (PW-7) ran
  towards the scene of offence. On seeing them, Chaudhari Bababhai Narsang
  (A-2) gave stick blow on the forehead ofChelji, whereas Suraj (A-3) assaulted
E Chelji with log. As a result of such assaults Chelji also received injuries. On
  seeing this, he (PW-4) also proceeded towards that place. One Velji Kuber
  and Chaudhari Madhevbahi Velji also appeared, but in the meanwhile all the
  accused had run away. As his father Velji and brother Chelji were injured,
  both were taken to village in bullock cart and from there they were removed
  in a tractor for treatment to Visnagar Hospital. In FIR it was also stated about
F the motive of this incident. It was stated that on account of partition of
  agricultural properties belonging to his aunt Sakiben, one field had come to
  the share of his father and, therefore, the accused nurtured grudge and enmity
  against them and with a view to do away with life of his father and brothers,
  all the three accused armed with weapons had entered the field and attacked
G and caused injuries. It was further stated that owing to the attack by accused,
  his father Velji had become unconscious and was unconscious till the time
  FIR was lodged. Injured Veljibhai who was admitted in the Civil Hospital,
  Ahmedabad died on 8.5.1983 due to the injuries sustained by him and
  therefore, the charge under Section 302 was added, though initially Section
  307 was indicated. On completion of investigation, charge sheet was filed.
H Prosecution's version mainly rested on the evidence of eyewitnesses. Accused
        C.R.NARASANGBHAI v. STATE OF GUJARAT [PASAYAT, J.]                    395
persons pleaded innocence and false implication. It is to be noted that               A
additionally the defence version was to the effect that the incident did not
take place in the agricultural field as stated by the prosecution witnesses. The
prosecution witnesses were the aggressors and in the scuffle the deceased fell
down and the bullock cart ran over him.

       The informant was examined as PW-4. His mother Hetiben was                     B
examined as PW-5. Cheljibhai brother of the deceased and son of the deceased
was examined as PW-6. This witness is blind having lost eyesight since Jong.
 However, he has stated that he can identify his relatives, near and dear ones
by their voice and that he used to visit the agricultural field with his family
members. While narrating the incident, he stated that on the fateful day, time        C
and place, he heard the cries of his father saying that he is being killed. At
that time, his father was beneath the peepal tree. He also went there whereupon
accused nos.2 and 3 started assaulting him. He narrated this fact as was told
by the informant and other brother. He stated thereafter that he was dragged
to the Neliya (a narrow road to agricultural field) and thereafter the accused
ran away from there. Since Kanjibhai (PW-7) son of the deceased had also              D
given similar narration, the trial Court held that the testimony is not trustworthy
and reliable because there were material contradictions between the evidence
of different witnesses and extended benefit of doubt. It was also noticed that
the medical evidence did not fit in with the eyewitness's version. It was, inter
alia, observed that there was no sufficient and reliable circumstance which           E
would show that there was any reason for the accused persons to go to the
field of the complainant side and assault the deceased and his sons. The
defence version that the complainants had gone to the Neliya and had
obstructed the cart and assaulted the accused appears to be more probable.
The absence of the name of one Shantaben in the FIR or in the police
statement was also considered to be a suspicious circumstance. It was also            F
observed that some independent witnesses whose presence was· established
were not examined.

      In appeal the High Court found that the trial Court's approach was
erroneous. It was of the view that if a particular fact stands established by the
evidence of trustworthy and reliable witnesses, the record is not to be burdened      G
by examining other witnesses for proving the same fact as it would amount
to multiplicity only. If the witness is otherwise reliable and trustworthy, the
fact which is sought to be proved by that witness need not be further proved
through other witnesses. Even if a witness is related to the deceased there is
no reason to discard his evidence if he is reliable and trustworthy. What is          H
    396                      SUPREME COURT REPORTS (2003] SUPP. 5 S.C.R.

A required is the cautious and careful approach in appreciating the evidence
  because a part of the evidence might be tainted owing to the relationship and
  the witnesses might be exaggerating the facts. In such an event, the Court is
  to appreciate the evidence in the light of other evidence on record which may
  be either oral or documentary. It was noticed that the presence of the informant
B was not challenged in the cross examination and this was considered significant
  by the High Court. The incident was admitted by the accused persons and
  their presence at the time and place of occurrence was also not under dispute.
  The presence of the deceased and the injured (PW-7) was also not disputed
  as is clear from the tenor of cross-examination as well as the stand taken by
  the accused. The informant was examined at length and the High Court
C noticed that nothing infirm was brought out by such cross-examination. The
  evidence of PW-5 i.e. his mother was also held to have corroborated the
  evidence of PW-4 and PW-6, the blind witness.

            In support of the appeal, Mr. Sushil Kumar learned senior counsel
    submitted that without compelling reasons judgment of the trial Court has
D   been set aside. The prosecution has suppressed the genesis of the dispute and
    its version lacks ~f credibility. The doctor had found that the injuries sustained
    were lacerated and not incised. Though the witnesses have stated the weapon
    of assault to be a 'kudal', there is no mention in the evidence of PW-4 about
    the side of the weapon which was allegedly used. The post mortem report
E   and the medical evidence completely rule out the oral evidence about the use
    of'kudal'. Strong reliance was placed on decisions of this Court in Hal/u and
    Ors. v. State of Madhya Pradesh, (1974] 4 SCC 300 and Balaka Singh and
    Ors. v. The State of Punjab, (1975] 4 SCC 511 importing specific statement
    about the side of weapon of assault. It is submitted that prosecution had a
    duty to obtain clarification. Significantly, the blood-stained clothes were sent
F   for medical examination and not blood stained weapons. The contradictions
    highlighted by the trial Court related to the ocular evidence and the medical
    evidence and not contradictions between the evidence of different witnesses.
    Therefore, the High Court committed an error in holding that the trial Court's
    judgment was vulnerable.

G         Residually, it is submitted that when the benefits of probation were
    extended to the two co-accused persons there was no plausible reason to
    adopt a different standard so far as the present appellant is concerned as he
    stands on the same footing.

          Learned counsel appearing for the respondent-State on the other hand
H
        C.R. NARASANGBHAI v. STATE OF GUJARAT [PASAYAT, J.]               397
submitted that the Trial Court had acted on impermissible premises without        A
keeping in view the correct position in law. The factual position was also not
properly analysed. Therefore, the High Court was justified in setting aside
the acquittal. Though the co-accused persons have been granted benefit of
probation, and no appeal has been filed challenging that part of the High
Court's judgment, the appellant cannot take advantage of that as his definite
role in the crime was established and he was the main brain behind the crime.     B
       Coming to the appellant's plea regarding the actual place of occurrence,
the High court has analysed the factual position and with reference to the
evidence of PW-4 noticed that there were hedges all round the field on four
sides which improbabilises the defence version, though it had found favour        C
with the learned trail Judge. The consistent evidence of PWs 4, 5, 6 and 7
is to the effect that the deceased was sweeping under the Peepal tree. They
did not say that he was near the tree, which seems to be the defence stand.

      So far as the injuries found on the deceased and the side of the weapon
used, it is to be noted that injuries were not in the middle of the body but on D
the side. From the evidence, it is clear that those were possible. if assaults
were made when the deceased was moving. So far as the decisions of this
Court in Hallu 's case (supra) and Ba/aka Singh 's case (supra) are concerned,
the position was succinctly stated in Gurmej Singh and Ors. v. State of
Punjab, (1991) Supp. 2 SCC 75. It was observed in paragraph 8 as follows:
                                                                                  E
            "Counsel for the appellants next submitted that according to the
       prosecution appellant Gian Singh was armed with a gandasi and he
       is alleged to have given a blow therewith on the chest of the deceased.
       Ordinarily a gandasi blow would cause an incised would whereas the
       deceased had an abrasion 5" * l" on the chest caused by a hard and         F
       blunt substance. According to counsel normally when a witness
       deposes to the use of a particular weapon there is no warrant for
       supposing that the blunt side of the weapon was used by the assailant
       In support of this contention counsel invited our attention to two
       decisions, namely, Hallu v., State of MP., (1974] 4 SCC 300 and
       Nachhattar Singh v. State of Punjab, (1976] I SCC 750. In his              G
       submissions, therefore the injury found on the chest could not be
       attributed to Gian Singh, who is stated to have used the gandasi. We
       see no merit in this contention for the simple reason that the
       prosecution witnesses have categorically stated that Gian Singh used
       the blunt side of the gandasi. If the prosecution witnesses were silent    H
    398                    SUPREME COURT REPORTS [2003] SUPP. 5 S.C.R.

A          in this behalf of the submission of counsel would have carried weight.
           But where the prosecution witnesses categorically state that the blunt
           side of the weapon was used there is no room for believing that the
           sharp side of the weapon which would be normally used had in fact
           been used. The observations in the aforesaid two judgments do not
           lay down to the contrary. In fact in the first mentioned case it is
B          clearly stated that if the prosecution witnesses have clarified the
           position, their evidence would prevail and not the normal inference.
           Counsel, however, made a grievance that the prosecution had not
           tried to elicit the opinion of PW- I Dr. Malhotra on the question
           whether such an abrasion was possible by a gandasi blow. According
c          to him, as held by this Court in Kartarey v. State of U.P. (1976) I
           SCC 172 and Ishwar Singh v. State of U.P., [1976] 4 SCC 355. It was
           the duty of the prosecution to elicit the opinion of the medical man
           in this behalf. PW- I clearly stated in the course of his examination-
           in chief that injuries 2,3 and 4 were caused by a blunt weapon. It is
           true that he was not specifically asked if the chest injury could have
D          been caused by the blunt side of the gandasi. It cannot be gainsaid
           that the prosecution must endeavour to elicit the opinion of the medical
           man whether a particular injury is possible by the weapon with which
           it is alleged to have been caused by showing the weapon to the
           witness. In fact the Presiding officer should himself have elicited the
E          opinion. However, in this case it should not make much difference
           because of evidence ofPWs 2 and 3 is acceptable and is corroborated
           by the first information report as well as PW-4. Ifthe medical evidence
           had also so opined it would have lent further corroboration. But the
           omission to elicit his opinion cannot render the direct testimony of
           PWs 2 and 3 doubtful or weak. We, therefore, do not see any merit
F           in this submission. In fact if we turn to the cross-examination of PW-
            1 we find that the defence case was that these three injuries were
           caused by the rubbing of the body against a hard surface, a version
           which has to be stated to be rejected".
                                                       (Underlined for emphasis)
G
         Above being the position, the plea of learned counsel for the appellant
  that it was the duty of the prosecution witnesses to clarify as to which side
  of the weapon was used is without substance when the direct evidence
  sufficiently establishes the assaults. In any event, PW-6 has stated that the
H blunt side of the weapon was used.
         C.R. NARASANGBHAI v. STATE OF GUJARAT [PASAYAT, J.]              399
        Coming to the plea that the contradictions noticed by the trial Court A
 were ocular vis-a-vis the medical evidence, we find on reading of the judgment
 it is not to be so, Section 145 of the Indian Evidence Act, 1872 (in short the
 "Evidence Act") applies when same person makes two contradictory
 statements. It is not permissible in law to draw adverse inference because of
 alleged contradictions between one prosecution witness vis-a-vis statement of B
 other witnesses. It is not open to Court to completely demolish evidence of
 one witness by referring to the evidence of other witnesses. Witnesses can
 only be contradicted in terms of Section 145 of the Evidence Act by his own
 previous statement and not with the statement of any other witness. See
 Mohan/al Gangaram Gehani v. State of Maharashtra, AIR (1982) SC 839.
 As was held in the said case, Section 145 applies only to cases where the C
 same person makes two contradictory statements either in different proceedings
 or in two different stages of a proceeding. If the maker of a statement is
 sought to be contradicted, his attention should be drawn to his previous
 statement under Section 145 of the Evidence Act only. Section 145 has no
 application \'{here a witness is sought to be contradicted not by his own
 statement but by the statement of another witness.                             D
      Much emphasis was made on the non-examination of alleged
independent witnesses. The eyewitnesses have categorically stated that no
other person was present on the field to witness the incident.

        We find that the High Court has applied the correct principles in law    E
·while directing conviction of appellant by reversing judgment of acquittal
 passed by the trial Court. The conclusions arrived at therefor are not shown
 to suffer any patent error of law or perversity of approach and total lack of
 evidence to warrant interference. There are no reasons whatsoever to take a
 different view. The appeal stands dismissed.

N.J.                                                       Appeal dismissed.