NARENDRASINH KESHUBHAI ZALAversusSTATE OF GUJARAT

746                      [2023]REPORTS
               SUPREME COURT    2 S.C.R. 746                 [2023] 2 S.C.R.


A                  NARENDRASINH KESHUBHAI ZALA
                                         v.
                              STATE OF GUJARAT
                       (Criminal Appeal No. 1179 of 2012)
B                               MARCH 16, 2023
       [B. R. GAVAI, VIKRAM NATH AND SANJAY KAROL, JJ.]
              Penal Code, 1860 – ss. 302/34 – Arms Act, 1959 – ss. 25(1)
      A, 27(2) – Acquittal of accused – Appellant was accused of having
      committed the murder of the victim-deceased by shooting at him
C
      while he was sitting on a Nala with PW-3 – FIR was lodged and the
      charge-sheet was filed and the appellant was put on trial – Trial
      Court convicted the appellant on the testimony of the sole eye-witness
      (PW-3) and such conviction was upheld by the High Court – On
      appeal, held: In the case of a sole eye witness, the witness has to be
D     reliable, trustworthy, his testimony worthy of credence and the case
      proven beyond reasonable doubt and unnatural conduct and
      unexplained circumstances can be a ground for disbelieving the
      witness – It is not the quantity but the quality of witnesses and
      evidence that can either make or break the case of the prosecution
      – It is the duty of the prosecution to prove that the testimonies of the
E
      witnesses that it seeks to rely upon are of sterling quality, i.e. fully
      trustworthy and absolutely free from any kind of blemish – Further,
      it is true that concurrent findings of facts of the Courts below, are
      usually, not to be interfered with – However, in the instant case,
      testimony of PW-3 was full of blemishes, absolutely uninspiring in
F     confidence – In absence of any other evidence linking the accused
      to the murder of the deceased, testimony of PW-3 discarded –
      Appellant acquitted.
            Allowing the appeal, the Court
            HELD: 1. It is a settled principle of law that doubt cannot
G     replace proof. Suspicion, howsoever great it may be, is no
      substitute of proof in criminal jurisprudence. Only such evidence
      is admissible and acceptable as is permissible in accordance
      with law. In the case of a sole eye witness, the witness has to be
      reliable, trustworthy, his testimony worthy of credence and the
H     case proven beyond reasonable doubt. Unnatural conduct and
                                        746
NARENDRASINH KESHUBHAI ZALA v. STATE OF GUJARAT                         747


unexplained circumstances can be a ground for disbelieving the          A
witness. [Para 8][750-H; 751-A-B]
       2. What makes testimony of PW-3 shaky and the witness
unbelievable is his admission of the Police Headquarters being
in close proximity to the place of occurrence of the incident and
despite knowing that police is always posted at the gate he did         B
not approach the police. The explanation furnished is only that
he was “much scared”, which prudently is not acceptable, given
that he was a close friend of the Deceased. Further, his credit
stands impeached in the cross-examination part of his testimony.
The witness is an adult, mature and worldly wise. He is aged 24
years and runs a grocery shop. He is not illiterate, yet he chose       C
to not take any action, even to save the life of his friend. His
explanation that he went home and slept is uninspiring in
confidence for the incident took place in his presence and in close
proximity of habitation, more specifically at a short distance i.e.
just 3-4 minutes of walking distance from the Police Headquarters       D
where constables are posted around the clock. He left his friend
profusely bleeding on the spot but did not seek any help and
immediately did not report the incident to the family members of
the deceased. [Para 9][752-C-G]
      3. This Court on multiple occasions has held that it is not       E
the quantity but the quality of witnesses and evidence that can
either make or break the case of the prosecution. It is the duty
of the prosecution to prove that the testimonies of the witnesses
that it seeks to rely upon are of sterling quality, i.e. fully
trustworthy and absolutely free from any kind of blemish. [Para
10][752-H; 753-A]                                                       F

      4. In the absence of any other evidence linking the accused
to the murder of the deceased, the testimony of PW-3 discarded,
there is no other direct or circumstantial evidence, ocular or
otherwise, linking the accused be it on the point of motive or the
incident. It is in this backdrop it is found that the Courts below to   G
have seriously erred. The settled principles of convicting the
accused on circumstantial evidence, enunciated by this Court in
Sharad Birdhichand Sarda v. State of Maharashtra (1984) 4 SCC

                                                                        H
748            SUPREME COURT REPORTS                      [2023] 2 S.C.R.


A     116, have not been followed by the Courts below. It is true that
      concurrent findings of facts of the Courts below, are usually, not
      to be interfered with. However, it is only in the presence of
      exceptional circumstances, this Court exercises its wide powers
      where there is travesty of justice and when absurd and erroneous
      conclusions are drawn by the Courts below. This is one such case
B
      fit for exercising the powers entrusted to us as a duty under Article
      136 of the Constitution. [Paras 16, 17][754-D-G]
            Jagga Singh v. State of Punjab 1994 Supp (3) SCC
            463; Anil Phukan v. State of Assam (1993) 3 SCC 282
            : [1993] 2 SCR 389; Amar Singh v. State (NCT of Delhi)
C
            (2020) 19 SCC 165; Amrik Singh v. State of Punjab
            (2022) 9 SCC 402; Pramila v. State of U.P. (2021) 12
            SCC 550; Krishan Kumar Malik v. State of Haryana
            (2011) 7 SCC 130 : [2011] 8 SCR 774 Kartarey v. State
            of U.P. (1976) 1 SCC 172 : [1976] 2 SCR 199; Ishwar
D           Singh v. State of U.P. (1976) 4 SCC 355: Chaudhari
            Ramjibhai Narasangbhai v. State of Gujarat (2004) 1
            SCC 184 : [2003] 5 Suppl. SCR 390; Sharad
            Birdhichand Sarda v. State of Maharashtra (1984) 4
            SCC 116 : [1985] 1 SCR 88; Ramaphupala Reddy v.
            State of Andhra Pradesh (1970) 3 SCC 474; Balak Ram
E
            v. State of U.P. (1975) 3 SCC 219 : [1975] 1 1SCR
            753; Bhoginbhai Hirjibhai v. State of Gujarat (1983) 3
            SCC 217 : [1983] 3 SCR 280 – referred to.
                             Case Law Reference
F     [1993] 2 SCR 389                 referred to             Para 8
      [2011] 8 SCR 774                 referred to             Para 10
      [1976] 2 SCR 199                 referred to             Para 15
      [2003] 5 Suppl. SCR 390          referred to             Para 15
G
      [1985] 1 SCR 88                  referred to             Para 16
      [1975] 1 1SCR 753                referred to             Para 17
      [1983] 3 SCR 280                 referred to             Para 17

H
NARENDRASINH KESHUBHAI ZALA v. STATE OF GUJARAT                               749


      CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.                    A
1179 of 2012.
      From the Judgment and Order dated 29.12.2011 of the High Court
of Gujarat at Ahmedabad in CRLA No. 1037 of 2003.
     A. Sirajudeen, Sr. Adv., Mrs. Revathy Raghavan, Ashok Kumar,
Sanchit Vashisthe, Advs. for the Appellant.                                   B

      Ms. Swati Ghildiyal, Ms. Devyani Bhatt, Advs. for the Respondent.
      The Judgment of the Court was delivered by
      SANJAY KAROL, J.
                                                                              C
       1. Vide a judgment dated 19.07.2003 passed by the Ld. Addl.
Sessions Judge, Fast Track Court at Surendranagar, Gujarat in Sessions
Case No. 27 of 2002, the appellant Narendrasinh Keshubha Zala stood
convicted for having committed offences under Section 302, Indian Penal
Code read with Section 34, Indian Penal Code as also under Section 25
(1) A and Section 27 (2) of the Arms Act. In relation to the offence          D
under Section 302, Indian Penal Code, he is sentenced to suffer
imprisonment for life and pay fine of Rs. 500 and in default thereof, an
additional sentence for one month. The same stands affirmed by the
High Court vide impugned judgment.
       2. In brief, the case set up by the prosecution reads as follows: on   E
14.1.2002 at around 2:30 AM police registered an FIR in relation to the
murder of a person namely, Ram. The complaint was registered on the
asking of Shri Mahipal K. Jadeja (PW-1), father of the deceased in the
night intervening 13-14th of January, 2002. The Complaint records the
complainant to have stated that at around 11:00 PM one person known
                                                                              F
as Munna Bhai alias Krupal Rajnikant (PW-6) had come on a motorcycle
to his residence informing him of his son being critically injured and
being taken to MG Hospital in an autorickshaw. The Complainant along
with this person reached the hospital where he saw the dead body of his
son lying on a stretcher. There was a cut on the left eyebrow and the
right side of the neck bleeding profusely. On inquiry he was informed by      G
the doctor that the victim had died as result of a fire shot injury.
Significantly, in the complaint recorded the same day at around 02:15
AM he states that, his son had left the house for a walk after having
dinner. Further, “… I have no information as to how and who killed my
son…” and that “…his son had no animosity prompting anyone to kill…”.
                                                                              H
750            SUPREME COURT REPORTS                           [2023] 2 S.C.R.


A            3. With the registration of the FIR, investigation was conducted
      by I.O. Manbha Bepasaheb Parmar, (PW - 20) which revealed that on
      13.1.2002 at around 9:30 PM, while the deceased and Nirav Bipinbhai
      Patel (PW-3) were sitting on the Nala near the Circuit House, accused
      Narendra and Shailendra – pillion rider came on a motorcycle and after
      a brief talk, accused Narendra Zala (Appellant herein) shot dead the
B
      deceased with a gun, which was discovered pursuant to his disclosure
      statement. With the completion of investigation, challan was presented
      in the court for trial only against accused Narendra Zala.
             4. The Ld. Trial Court convicted the accused on the ground that
      the incident was witnessed by Nirav Bipinbhai Patel (PW-3), whose
C     testimony, being the sole eye-witness was trustworthy and reliable to
      the extent that there was motive, being money dispute which the deceased
      had to return to the Accused. The Police pursuant to Appellants disclosure
      statement recovered the weapon of crime.
             5. The High Court upheld the judgement of the Ld. Trial Court on
D     the ground that the prosecution story was reliable and worthy of credence.
      Even on the absence of motive being established, i.e. whether or not the
      deceased owed money to the Appellant, the testimony of the sole
      eyewitness (PW-3), worthy of credence, fully matched with the case of
      Murder as set out by the prosecution.
E           6. We have heard learned counsels for both the parties at length.
      Certain facts are not in dispute:
             (A) The identity of the deceased and the death as result of a gun
      shot injury; (B) The Post Mortem conducted by Dr. Ravjibhai Makwana
      (PW - 5) who prepared the Post Mortem Report (Ex. P.36) evidencing
F     the fact that 60 metal pellets were recovered from the muscular tissues
      of the neck of the deceased; (C) The cause of death being haemorrhage
      on account of injury on the right side of the neck pursuant to the use of
      firearm; (D) The prosecution case rests on the testimony of material
      witnesses, i.e. PW-3 sole eyewitness, who was the deceased’s friend
G     and PW-1 who is father of the deceased.
             7. In the considered view of this Court this case primarily rests
      solely upon the testimony of PW-3, which is full of blemishes, absolutely
      uninspiring in confidence and the witness not having deposed the truth.
            8. It is a settled principle of law that doubt cannot replace proof.
H     Suspicion, howsoever great it may be, is no substitute of proof in criminal
NARENDRASINH KESHUBHAI ZALA v. STATE OF GUJARAT                               751
              [SANJAY KAROL, J.]

jurisprudence [Jagga Singh v. State of Punjab, 1994 Supp (3) SCC              A
463]. Only such evidence is admissible and acceptable as is permissible
in accordance with law. In the case of a sole eye witness, the witness
has to be reliable, trustworthy, his testimony worthy of credence and the
case proven beyond reasonable doubt. Unnatural conduct and unexplained
circumstances can be a ground for disbelieving the witness. This Court
                                                                              B
in the case of Anil Phukan v. State of Assam, (1993) 3 SCC 282 has
held that:
      “ 3. … So long as the single eyewitness is a wholly reliable witness
      the courts have no difficulty in basing conviction on his testimony
      alone. However, where the single eyewitness is not found to be a
      wholly reliable witness, in the sense that there are some               C
      circumstances which may show that he could have an interest in
      the prosecution, then the courts generally insist upon some
      independent corroboration of his testimony, in material particulars,
      before recording conviction. It is only when the courts find that
      the single eyewitness is a wholly unreliable witness that his           D
      testimony is discarded in toto and no amount of corroboration can
      cure that defect…”
    The same principle has been enunciated in: Amar Singh v. State
(NCT of Delhi), (2020) 19 SCC 165.
       9. In the instant case when we examine the testimony of PW-3,          E
we notice him to have deposed that on the fateful night ie. 13.1.2002,
around 11 PM both he and the deceased were sitting on a Nala near the
Circuit House in Surendranagar. At that time, accused came on a
motorcycle with Shailendra as a pillion rider and after abusing, wanted
Ram (deceased) to state as to when he would return the money borrowed         F
by him. When the deceased stood up to answer, Narendra pulled out a
pistol and after placing it on the neck, said, “… this would not take much
time to finish you.” Thereafter, accused fired the pistol. Resultantly, the
deceased collapsed on the ground and started bleeding profusely from
the neck. Immediately, Narendra Zala and Shailendra drove away
towards the Sardar Society. PW-3 states that the incident left him shocked    G
and stunned. He was so scared that he ran towards the society where
he met his uncle Harshad Veljibhai (PW-9) and his friend Manish Natvarlal
Trivedi (PW-8) whom he informed of the incident. Seeing his condition,
he was asked by his uncle to go home and sleep. Next morning, he went
to the house of Ram and narrated the incident to his mother and sister        H
752             SUPREME COURT REPORTS                            [2023] 2 S.C.R.


A     Heenaba Pradipsinh Zala (PW-2). Thereafter he went to the hospital
      and informed Ram’s father (PW-1)of the incident. Police interrogated
      him at different places and recorded his statement on the 14th of January
      at around 4:30PM at the Police Headquarters. Cross examination part
      of his testimony reveals this witness to have repeatedly improvised his
      initial statement, disclosed to the Police. Illustratively he had not informed
B
      the Police of having disclosed the incident to the sister of the deceased.
      He had also not disclosed to the Police that there was exchange of
      words between Ram and Narendra (Appellant herein) in relation to some
      money owed by the deceased to the accused. This may not have any
      effect on the veracity of his statement. But what makes his testimony
C     shaky and the witness unbelievable is his admission of the Police
      Headquarters being in close proximity to the place of occurrence of the
      incident and despite knowing that police is always posted at the gate he
      did not approach the police. The explanation furnished is only that he
      was “much scared”, which prudently is not acceptable, given that he
D     was a close friend of the Deceased.
              Further, his credit stands impeached in the cross-examination part
      of his testimony. The witness is an adult, mature and worldly wise. He is
      aged 24 years and runs a grocery shop. He is not illiterate, yet he chose
      to not take any action, even to save the life of his friend. His explanation
      that he went home and slept is uninspiring in confidence for the incident
E
      took place in his presence and in close proximity of habitation, more
      specifically at a short distance i.e. just 3-4 minutes of walking distance
      from the Police Headquarters where constables are posted around the
      clock. He left his friend profusely bleeding on the spot but did not seek
      any help and immediately did not report the incident to the family members
F     of the deceased whose house he visited only the following day at around
      8:00 – 9:00AM.His conduct of going off to sleep, having seen his friend
      being murdered right before his eyes and then not visiting the hospital
      forthwith is quite unnatural. Also he did not inform the incident to his
      parents. It was only when the police interrogated him that he named the
G     accused. His testimony is not free from embellishments, nor is not
      corroborated by any other evidence. Also, he admits not to have any
      information of any monetary transactions between the accused and the
      deceased.
            10. This Court on multiple occasions has held that it is not the
      quantity but the quality of witnesses and evidence that can either make
H
NARENDRASINH KESHUBHAI ZALA v. STATE OF GUJARAT                                  753
              [SANJAY KAROL, J.]

or break the case of the prosecution. It is the duty of the prosecution to       A
prove that the testimonies of the witnesses that it seeks to rely upon are
of sterling quality, i.e. fully trustworthy and absolutely free from any
kind of blemish. [Prahlad v. State of M.P.(supra); Amrik Singh v.
State of Punjab, (2022) 9 SCC 402; Pramila v. State of U.P., (2021)
12 SCC 550; Krishan Kumar Malik v. State of Haryana, (2011) 7                    B
SCC 130]
       11. Examining the testimony of an independent witness, Munna
bhai alias Krupal Rajnikant (PW-6), we find him to be the one to have
firstly informed the father of the deceased (PW-1) of his son having
sustained injuries and taken to MG Hospital, in such a condition. As per         C
his version, hearing cries of some fight, he rushed to the spot and noticed
the deceased lying on the road bleeding profusely. On his asking, one
autorickshaw driver took him to the hospital on the promise of paying
the fare. Who is this person? Why he himself did not take the deceased
to the hospital? All this remains unexplained. For after all, he knew him
and had informed the father of the deceased. Is it that he himself was a         D
suspect? Significantly, the witness admits not to have heard the sound of
the gun shot. He contradicts himself by stating that he had informed the
police of the incident only on 15.05.2002. He does not identify the
autorickshaw driver and was not familiar with him. Significantly, the
autorickshaw driver has not been examined in the Court.                          E
        12. When we examine the testimony of the Complainant (PW-1)
we notice him to have deposed that around 11 PM, one person namely
Munna Bhai alias Krupal Rajnikant (PW-6) came on a motorcycle and
informed that in a critically injured condition, Ram, had been taken to
MG Hospital in an autorickshaw. Immediately, he reached the hospital             F
and got recorded his complaint with the police. It is the case of this
witness that Nirav (PW-3) met him in the hospital at around 9:30AM
and at that time informed him of the incident. This witness does not
corroborate the testimony of Nirav (PW-3) of the disclosure of the incident
either to his wife or daughter (PW-2). Further, if the identity of the accused
                                                                                 G
was known both to the father (PW–1) and Nirav (PW-3) then why is
that the statement implicating the accused was recorded only at 4:30PM
in the evening? The timing is significant, more so when Nirav (PW-
3)himself was interrogated by the Police at two different places, which
exercise continued till 6:30PM of the evening of 14.01.2002.
                                                                                 H
754             SUPREME COURT REPORTS                           [2023] 2 S.C.R.


A            13. Coming to the testimony of Harshadbhai Veljibhai Patel (PW-
      9), we notice him to have not supported the prosecution at all and in the
      cross examination part of his testimony, we do not find anything eliciting
      of the accused in the crime.
             14. We may observe that save and except for the confessional
B     statement of the accused, the Prosecution is not able to link the weapon
      with the accused. There was no scientific evidence, or the marks of his
      fingerprints, other identification marks or any tell-tale signs of the blood
      found on body of the deceased, linking it to the metal pellets of the bullet
      fired from the weapon recovered during investigation.
C            15. This Court has consistently held in a catena of judgements
      that it is the duty of the prosecution to establish use of the weapon
      discovered in the commission of the crime. Failure to do so may cause
      aberration in the course of justice. [Kartarey v. State of U.P., (1976)
      1 SCC 172; Ishwar Singh v. State of U.P., (1976) 4 SCC 355;
      Chaudhari Ramjibhai Narasangbhai v. State of Gujarat, (2004) 1
D     SCC 184; Amar Singh’s case (Supra)]
             16. In the absence of any other evidence linking the accused to
      the murder of the deceased, the testimony of PW-3 discarded, there is
      no other direct or circumstantial evidence, ocular or otherwise, linking
      the accused be it on the point of motive or the incident. It is in this
E     backdrop we find the Courts below to have seriously erred. The settled
      principles of convicting the accused on circumstantial evidence, enunciated
      by this Court in Sharad Birdhichand Sarda v. State of Maharashtra
      (1984) 4 SCC 116, have not been followed by the Courts below.
             17. It is true that concurrent findings of facts of the Courts below,
F     are usually, not to be interfered with. However, it is only in the presence
      of exceptional circumstances, this Court exercises its wide powers where
      there is travesty of justice and when absurd and erroneous conclusions
      are drawn by the Courts below. We are of the opinion that this is one
      such case fit for exercising the powers entrusted to us as a duty under
G     Article 136 of the Constitution in lite of principles enunciated
      in:Ramaphupala Reddy v. State of Andhra Pradesh, (1970) 3 SCC
      474; Balak Ram v. State of U.P., (1975) 3 SCC 219; Bhoginbhai
      Hirjibhai V. State of Gujarat, (1983) 3 SCC 217.
            18. We may record that the High Court seriously erred in finding
      the accused guilty of having committed the offence of murder under
H
NARENDRASINH KESHUBHAI ZALA v. STATE OF GUJARAT                               755
              [SANJAY KAROL, J.]

Section 302, Indian Penal Code. In its judgment running into 21 pages,        A
the Court has simply reproduced the decisions rendered by this Court
and presumptively, without actually appreciating or discussing the
testimony of PW-3, held him to have deposed truthfully, fully establishing
the prosecution case, against the accused, beyond reasonable doubt.
      19. Unfortunately, none of the courts below have referred to the        B
basic principles of criminal jurisprudence. We may also state that the
Courts must refrain from committing such grave errors in the future,
whereby innocent people are made to suffer incarceration for over a
period of nearly two decades, without proper appreciation of evidence.
       20. Hence, we set aside the judgments passed by the Ld. Addl.          C
Sessions Judge, Fast Track Court at Surendranagar, Gujarat in Sessions
Case No. 27 of 2002, dated 19.07.2003, titled State Government of Gujarat
v. Narendrasinh Keshubhai Zala, as affirmed by the High Court of Gujarat
at Ahmedabad vide judgment in Criminal Appeal No, 1037 of 2003, dated
29.12.2011, titled Narendrasinh Keshubha Zala v. State of Gujarat and
acquit the accused (Appellant herein) of all the charges framed against       D
him.
       The present appeal is allowed.
      We direct the Appellant to be released forthwith unless required
in any other case.                                                            E

Ankit Gyan                                                  Appeal allowed.
(Assisted by : Mahendra Yadav, LCRA)



                                                                              F




                                                                              G




                                                                              H