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2009 DIGILAW 90 (GUJ)

Harijan Keshubhai Badhabhai v. State of Gujarat

2009-02-16

A.L.DAVE, J.C.UPADHYAYA

body2009
Judgment A.L. Dave, J.—The appellants have challenged the judgment and order rendered by the Sessions Court, Rajkot in Sessions Case No. 62/1998 on 19/10/2002 convicting both of them for the offence of murder of Dalpat Raja and sentencing them to imprisonment for life and fining each of them for Rs. 10,000/-, in default to undergo rigorous imprisonment [RI] for two years. 1.1. During the pendency of the appeal, Appellant No. 1 - Harijan Keshu Badhabhai expired on 30/12/2008 while under treatment at Civil Hospital, Rakot. His heirs and legal representatives have chosen not to pursue this appeal even till today. As a result, the appeal of Appellant No. 1 - Harijan keshu Badhabhai would stands abated. 2. Brief facts of the case are that the incident in question occurred on 16/9/1997 around 11.30 am in the Court house of 6th Joint Civil Judge [S.D.] and Judicial Magistrate First Class, Bhavnagar. It is the case of the prosecution that both the appellants assaulted deceased Dalpat Raja Harijan with daggers and/or Dhariya and caused multiple injuries on the person of Dalpat Raja and Dalpat Raja sucumbed to the injuries on the spot. 2.1. On the day of incident, Dalpat Raja Harijan was required to attend the Court as an accused in the Court of 6th Joint Civil Judge [S.D.] and Judicial Magistrate First Class, Bhavnagar, along with co-accused Mahendra Ramjibhai Patel, who happens to be PW 29 in the instant case as eye witness to the incident. It also appears that Appellant No. 1 was also to face a charge in the same Court in Criminal Case No. 1438 of 1995. 2.2. Around 11.30 am, it is the case of the prosecution, that the appellants chased deceased Dalpat Raja with daggers in their hands. Dalpat Raja, therefore, rushed into the Court house probably seeking shelter or protection, but the appellants chased him even into the Court house and attacked him. At that time, the Presiding Officer of the Court Mr. C.R. Thakkar was on dais. Court orderly Bhanji Valji was on duty near the entrance of the Court room and he saw the incident. On the appellants assaulting the deceased in the Court premises, persons present in the Court including the Court staff, lawyers and the Presiding Officer started running helter-skelter and escaped from the room. C.R. Thakkar was on dais. Court orderly Bhanji Valji was on duty near the entrance of the Court room and he saw the incident. On the appellants assaulting the deceased in the Court premises, persons present in the Court including the Court staff, lawyers and the Presiding Officer started running helter-skelter and escaped from the room. Bhanji Valji shuts the duo in the Court room, but then he was threatened or intimidated by Appellant No. 1 by showing a dagger. He, therefore, re-treated out of the Court room and on seeing this, Appellant No. 1 started chasing him and went back into the Court room. In the meantime, PSI Kanubhai Patel had arrived upon hearing the commotion from adjoining Court where he had come in connection with his official duty. After rushing to the place and noticing the situation, PSI Patel, after asking the accused to hold standstill, shut the door of the Court room with the help of Bhanji Valji. The door of the Court house opens on a Varanda where there is a staircase for going to the first floor. That Varanda is closed and there is a rolling shutter fitted to the entrance to the Varanda. The said shutter was also closed to ensure that the assailants do not run away. PSI Patel then went to another Judge’s chamber to inform the police on telephone, but realized that the phone provided was only an intercom and he, therefore, asked a policeman to inform the police head quarters and then he returned to the site. 2.3. Within moment thereafter, Dy. S.P Mr. Trivedi arrived at the spot and went to the chamber of the District Judge on the upper storey. Investigating Officer [IO] PI Mr. Chudavat also arrived at the spot and then the shutter as well as the door to the Court room were opened in presence of Dy. S.P Mr. Trivedi and PI Mr. Chudavat. That opening the door, they found dead-body of Dalpat Raja lying on the floor in a puddle of blood besides the dais. There were no traces of the assailants, who were locked into the Court room and it was found that they had escaped from the Court room by forcibly breaking open the grill of a window located behind the dais. There were no traces of the assailants, who were locked into the Court room and it was found that they had escaped from the Court room by forcibly breaking open the grill of a window located behind the dais. An FIR was lodged by Bhanji Valji, the Court Duty Constable and offence was registered with “C” Division Police Station at Bhavnagar. The case was investigated upon and ultimately charge-sheet was filed against the appellants accused persons along with accused Mithiben Badhabhai in the Court of 6th Joint Civil Judge [S.D.] and Judicial Magistrate First Class, Bhavnagar, who in turn committed the case to the Court of Sessions, Bhavnagar, as the offences were triable exclusively by Court of Sessions. 2.4. It appears that the said Sessions Case was then transferred by an order of the High Court to the Sessions Court, Rajkot and renumbered as Sessions Case No. 62 of 1998. Ld. Sessions Judge, Rajkot framed charge at Exhibit 6, to which the accused - appellants persons pleaded not guilty and claimed to be tried. 3. Upon considering the evidence led by the prosecution, the Sessions Court came to a conclusion that the prosecution was not successful in proving charges against original accused No. 3 - Harijan Mithiben Badhabhai and recorded her acquittal. So far as the original accused Nos. 1 and 2, the appellants, are concerned, the Court found that the charge of murder was proved against them and, therefore, recorded their conviction and sentence as recorded in the earlier part of this judgment. 3.1. The State has chosen not to challenge the acquittal of original accused No. 3 - Harijan Mithiben Badhabhai and there is no appeal against that acquittal. 4. Learned Advocate Mr. Pardiwala has taken us through the record and proceedings. The paper book runs into about 1300 pages and the number of documents exhibited on record of the trial Court, including the judgment, are 476. We have carefully examined this bulky record and we find that for the purpose of deciding this appeal, evidence of following witnesses would be relevant:— i. PW 1 - Dr. Shrivastava Exhibit 16 ii. PW 13 - Ghanshyamsinh Jadeja, the Executive Magistrate, Exhibit 45 iii. PW 25 - Mr. C.R. Thakkar, Exhibit 71 iv. PW 28 - PSI Mr. Kanubhai Patel, Exhibit 87 v. PW 29 - Mahendrabhai Ramjibhai Patel, Exhibit 133, vi. Shrivastava Exhibit 16 ii. PW 13 - Ghanshyamsinh Jadeja, the Executive Magistrate, Exhibit 45 iii. PW 25 - Mr. C.R. Thakkar, Exhibit 71 iv. PW 28 - PSI Mr. Kanubhai Patel, Exhibit 87 v. PW 29 - Mahendrabhai Ramjibhai Patel, Exhibit 133, vi. PW 30 - Police Constable Bhanjibhai Valjibhai Gohil, Exhibit 193. and vii. PW 39 - Laxmansinh Chudavat, I O Exhibit 331. 4.1. According to Mr. Pardiwala, the conviction is based mainly on evidence of Police Constable Bhanji Valjibahi Gohil and PSI Kanubhai Patel and to some extent after relying upon evidence of Mahendrabhai Ramjibhai. Police Constable Bhanji and PSI Kanubhai Patel, they both claimed to be eye witnesses to the incident. According to Bhanji, he had seen the actual act of assault by the accused persons; whereas PSI Kanubhai Patel says that he reached the spot and saw the two appellants with daggers in their hands. Mr. Pardiwala submitted that evidence of these two witnesses, they run contrary to each other and create a conflict between the two versions. Mr. Pardiwala submitted that the conduct of witness Bhanji at the time of incident and after the incident is unnatural. Similarly, conduct of Kanubhai Patel is also unnatural. According to him, he had gone to the Court in connection with his official duty; still he was not in uniform and although he was having a revolver, he did not use it to protect the deceased. Presence of witness Kanubhai Patel becomes doubtful when the IO does not speak of his presence on the spot; whereas Kanubhai Patel claimed to be present over there. Learned Advocate Mr. Pardiwala submitted further that both Bhanji as well as Kanubhai Patel have not acted like police officers. They claimed that they had shut the assailants in the Court room and then they shut rolling shutter at the entry of the Varanda. The evidence if closely seen, would create doubt as to whether Kanubhai Patel was present outside the Varanda when the Varanda shutter was closed down or whether was present when the doors to the Court room were closed. In such a situation, it becomes a matter of doubt that Kanubhai Patel could have seen the assailants. It is also submitted that the evidence on the question as to how Kanubhai Patel knew or identified the appellants is also scanty. In such a situation, it becomes a matter of doubt that Kanubhai Patel could have seen the assailants. It is also submitted that the evidence on the question as to how Kanubhai Patel knew or identified the appellants is also scanty. The witness Bhanji says that when he was studying in the school, he had seen the two appellants working as cobblers near his school and there is no evidence of his having being in touch with the appellants during the interregnum period. 4.2. According to Mr. Pardiwala, evidence of Bhanjibhai is neither wholly reliable nor wholly unreliable and, therefore, it can be accepted only if it is reliable and corroboration to his reliable part of evidence. Similar is the situation with the evidence of PSI Patel. Mr. Pardiwala, therefore, submitted that his evidence also cannot be accepted in absence of reliable corroboration. Mr. Pardiwala submitted that the evidence of these two eye witnesses is found to be infirm and therefore, they cannot corroborate each other. Mr. Pardiwala submitted further that it emerges from the evidence that inquest panchnama was drawn prior to the lodgment of FIR and, therefore, that FIR cannot be treated as such and will be of no virtue to the prosecution. 4.3. Mr. Pardiwala submitted further that the version given by the first informant in the FIR is contrary to the version in his deposition, so far as it relates to one Jesing Trikambhai. The first informant named Jesing Trikambhai as one of the assailants in the FIR, but he says nothing about him in his deposition. In fact, he has taken different stand on the very day of his lodging the FIR while giving a further statement to the IO that he had given name of Jesing Trikambhai only on surmise that in the earlier offence Jesing Trikambhai was co-accused with the appellants and, therefore, he must be one of the assailants. Mr. Pardiwala submitted that if the witness has tendency to rope in a person on such surmise or suspicion, his evidence cannot be given any credence. Mr. Pardiwala submitted that considering various judicial pronouncements, the appellants would be entitled to benefit of doubt, if not a clean acquittal. 4.4. Learned Advocate Mr. Mr. Pardiwala submitted that if the witness has tendency to rope in a person on such surmise or suspicion, his evidence cannot be given any credence. Mr. Pardiwala submitted that considering various judicial pronouncements, the appellants would be entitled to benefit of doubt, if not a clean acquittal. 4.4. Learned Advocate Mr. Pardiwala submitted that the theory of the prosecution that after appellants were locked in the Court room, they broke the grill of the window located behind the Judge’s dais and escaped therefrom, is doubtful. It is not the case of the prosecution that the appellants had any carpentry instruments with them and they hardly could have removed the grill, that too within the short span of time between the time they were locked into the Court room and the room was opened after opening of the lock. To add to this, Mr. Pardiwala submitted that the blood group of both the appellants is found to be “O” so also that of the deceased. Whereas the sample of blood found on the frame of the window is blood group “A” and this discrepancy is not explained by the prosecution. 4.5. Learned Advocate Mr. Pardiwala submitted that witness Mahendra has not identified Appellant No. 2 either in the T.I. Parade or in the Court and his evidence against Appellant No. 2, therefore, would become irrelevant or insignificant. He also submitted that evidence of Bhanji and Mahendra is also not consistent. There is no evidence to clarify as to how did he know the accused. Similar is the situation for PSI Patel. Mr. Pardiwala submitted that the weapons are recovered from an open place and that too at the instance of accused No. 1, who is already expired and, therefore, that circumstance would not be available against the Appellant No. 2. Mr. Pardiwala relied on the following decisions : i. Ravi vs. State Rep by Inspector of Police reported in 2008 (3) GLH p. 740 ii. Muluwa vs. State of M.P., reported in AIR 1976 SC 989 iii. Ramesh Baburao vs. State of Maharashtra reported in 2007 [13] SCC 501 and iv. Meharaj Singh vs. State of U.P., reported in 1994 [5] SCC 188. 4.6. Learned Advocate Mr. Muluwa vs. State of M.P., reported in AIR 1976 SC 989 iii. Ramesh Baburao vs. State of Maharashtra reported in 2007 [13] SCC 501 and iv. Meharaj Singh vs. State of U.P., reported in 1994 [5] SCC 188. 4.6. Learned Advocate Mr. Pardiwala submitted that Appellant No. 2 is described as Jivraj alias Bhikha Badha Harijan, but there is no evidence to show that his nickname is Bhikhabhai, which is the name given by first informant Bhanji in his FIR and, therefore, there is some controversy or doubt about the identity of Appellant No. 2. 5. Learned APP Mr. Mengdey has opposed this appeal. According to him, there is no inconsistency so far as evidence of eye witnesses Bhanji and PSI Patel is concerned. He submitted that evidence of these two witnesses, if closely seen, operate in different zone, the first zone is when the actual incident started and virtually ended. This is seen by Bhanji. Whereas Patel arrived only after the final attack is over and people have rushed out of the Court room when he comes and helps Bhanji to shut the door. His inaction in not using the revolver is appropriately explained by him by stating that if he opened the fire in the thickly populated area, it may hurt somebody, who may even passing by the window to the Court house. Mr. Mengdey submitted that Bhanji’s presence at the place is very natural. His bonafides are proved by the fact that he in his further statement on the very day of the incident, admits that he had given name of Jesing Trikambhai only on a surmise. Mr. Mengdey submitted that on his statement Jesing Trikambhai has not been prosecuted at all. Barring this version in the FIR, the witness has consistently implicated Appellants Nos. 1 and 2 only. Even during investigation also it is found from other pieces of evidence that only Appellants Nos. 1 and 2 were involved in the incident. The investigating agency could have very well roped in Jesing Trikambhai if they really wanted so to do. But they have also acted in a bonafide and honest manner and have charge-sheeted only two very assailants, whose identity is appropriately proved. Mr. Mengdey submitted further that find of blood group “A” on the window frame is not the correct statement of fact. But they have also acted in a bonafide and honest manner and have charge-sheeted only two very assailants, whose identity is appropriately proved. Mr. Mengdey submitted further that find of blood group “A” on the window frame is not the correct statement of fact. If the FSL report is examined, it is clear that the cotton thread sample taken from the window frame contained blood group “O” and not “A”. “O” is the blood group of the appellants as well as the deceased. 5.1. So far as the escape of the accused from window is concerned, Mr. Mengdey submitted that after they were locked into the room, they were all by themselves for a reasonably long time till the police head quarters was informed and the IO and the Dy SP arrived at the spot and opened the door to the Court room. The dagger which is found lying outside the window must have been used to open the window grill as the pointed portion of the blade of dagger is found to be bent. The appellants made use of a reasonably long time which was available with them and escaped. 5.2. So far as the identity of Appellant No. 2 is concerned, he has been identified by PSI Patel as well as Bhanji. So far as the name is concerned, Mr. Mengdey submitted that accused No. 2 when identified before the Court, gave his name as ‘Jivraj alias Bhikha’. Similarly even at the time of T.I. Parade, he has given his name as Jivraj alias Bhikha Badha. When he himself voluntarily gives this type of details, there is no need for a technical proof of the fact that Jivraj was also known as Bhikha. 5.3. So far as the presence of PSI Patel at the time when IO arrived at the spot is concerned, it is true that IO does not state in his deposition about he having seen PSI Patel, but if the deposition of Kanubhai Patel is seen, particularly paras. 28 and 30 of cross-examination, it is clear that defence itself has made a suggestion about presence of PSI Patel at the time when the IO Chudavat arrived. Non-mentioning of Patel’s name by Chudavat would pale into insignificance. Learned Advocate Mr. Pardiwala submitted that a suggestion in cross-examination may not bind the accused, to which Mr. 28 and 30 of cross-examination, it is clear that defence itself has made a suggestion about presence of PSI Patel at the time when the IO Chudavat arrived. Non-mentioning of Patel’s name by Chudavat would pale into insignificance. Learned Advocate Mr. Pardiwala submitted that a suggestion in cross-examination may not bind the accused, to which Mr. Mengdey submitted that suggestion in cross-examination may not bind the accused, but his objection to the situation would lose the vigor of it. 5.4. Mr. Mengdey submitted that there is no material, not even a suggestion that any of the witnesses had any animosity, bias or prejudice against the accused. They have no reason to falsely implicate the accused - appellants. Similarly, Bhanji had no motive or reason to falsely implicate Jesing Trikambhai while giving the FIR. It was his sheer mistake which he has rectified in his further statement. Mr. Mengdey submitted that the first informant has implicated only two persons in his examination-in-chief while giving account of the incident that he has witnessed. 5.5. Mr. Mengdey submitted that if the FIR is registered subsequent to inquest, the value of that FIR may be considered as inadequate or insufficient, but that would not vitiate the investigation or the trial and if the evidence led by the prosecution otherwise establishes the guilt of the accused, such an irregularity would not abrogate that evidence. Mr. Mengdey submitted that the witnesses have identified accused Appellant No. 2 in the Court and they knew the Appellant No. 2 from beginning and therefore, there is no question of T.I. Parade. So far as evidence of Mahendra Patel is concerned, he does not identify Appellant No. 2 either in the TI Parade or in the Court. His evidence mainly relates to accused No. 1, who has expired and appeal has abated. Mr. Mengdey submitted that non-identification of an accused by a witness in such eventuality, would not be fatal to the prosecution. He relied on a decision rendered in the case of Mahabir vs. [The] State of Delhi reported in 2008 [2] GLH p.536. 5.6. Learned APP, therefore, submitted that the trial Court has rightly recorded conviction and the conviction may be confirmed by dismissing the appeal. 6. We have examined the record and proceedings in context of the rival side submissions. 7. 5.6. Learned APP, therefore, submitted that the trial Court has rightly recorded conviction and the conviction may be confirmed by dismissing the appeal. 6. We have examined the record and proceedings in context of the rival side submissions. 7. The occurrence is sought to be established by the prosecution with depositions of first informant Bhanji Valjibhai Gohil Exhibit 193, Mahendra Ramjibhai Exhibit 133, PSI Kanubhai Patel Exhibit 87 and C.R. Thakkar Exhibit 71. These witnesses clearly in terms indicate involvement of two appellants. Presence of Bhanji is natural because he is the Court Duty Constable, presence of Mahendra Ramjibhai is natural because he was co-accused with the deceased in a criminal trial, which was fixed on that day, PSI Kanubhai Patel’s presence is also natural because he had one case to attend as a witness in this very Court and when the incident occurred, he was attending Additional Sessions Court in another case located in the same building and Mr. C.R. Thakkar was the Presiding Officer of the Court. This is how presence of all these witnesses at the time of occurrence is natural. 7.1. The evidence of Mahendra Ramjibhai and C.R. Thakkar would go to prove that such occurrence did take place at the place and at the time when it is claimed to have occurred i.e., around 11.30 am on 16/9/1997. Cross-examinations of these witnesses, despite a close scrutiny, do not indicate that occurrence is disputed or challenged. What is challenged is involvement of the accused - appellants, which subject we propose to deal with in the paras., to follow. 7.2. The evidence of Dr. Srivastava Exhibit 16 and the post mortem notes Exhibit 17 would go to show that the deceased had a large number of injuries over his person which could be attributed to a sharp edged weapon like dagger. Injuries Nos. 2, 3, 6 and 10 were found by Dr. Srivastava to be sufficient in ordinary course of nature to cause death, both individually and collectively. They were possible with the weapon produced on record as Muddamal and the deceased succumbed to the injuries on the spot. All these factors would lead us to conclude that the deceased died a homicidal death in an incident of assault on him that took place in the Court house of 6th Civil Judge [S.D.] Bhavnagar on 16/9/1997 at about 11.30 a.m. 8. All these factors would lead us to conclude that the deceased died a homicidal death in an incident of assault on him that took place in the Court house of 6th Civil Judge [S.D.] Bhavnagar on 16/9/1997 at about 11.30 a.m. 8. If the evidence of Police Constable Bhanji Valjibhai Gohil Exhibit 193 is seen, he states that he was on duty as Court Duty Constable on the day of incident and around the time when the incident occurred, he was sitting on his chair near the entrance door to the Court room. He suddenly saw deceased running into Court after noticing accused Nos. 1 and 2. Accused Nos. 1 and 2 chased him into the court. They both armed with daggers and ultimately the deceased was done to death by inflicting several blows. The witness has been cross-examined at length on various counts. The cross-examination runs into several pages [approximately 67 pages]. But we do not find any substantive admission or material from him which would render the deposition of this witness doubtful. He sticks to his version being an eye witness to the incident. He has lodged the FIR in that capacity i.e., of an eye witness. He claims to be knowing both the accused appellants by name. If his evidence about the identification of the appellants is seen, he says that when he was studying in the school, he had seen the appellants working as cobblers near the school. If the clock is set according to the time kept around that time, age of the accused No. 1 would be 20 and accused No. 2 would be 18. They would be sufficiently grown up with very little scope for change in their structure or feature. Bhanji says that he also rushed into the Court chasing the assailants i.e., the accused persons and when accused No. 1 turned down to him, he retreated and on seeing his retreat, accused No. 1 again reverted to the Court room. He and others closed the door to the Court room to prevent escape of the assailants. This version about others is sought to be capitalized upon by contracting him, but the witness assertively replies that by others, he and one PSI Patel, but he did not know PSI Patel earlier and was not in uniform. 9. He and others closed the door to the Court room to prevent escape of the assailants. This version about others is sought to be capitalized upon by contracting him, but the witness assertively replies that by others, he and one PSI Patel, but he did not know PSI Patel earlier and was not in uniform. 9. This version of this eye witness gets corroboration from evidence of PSI Patel, who says that while he was in the Court of Additional Sessions Judge, he heard commotion and, therefore, rushed to the place. He found people running helter-skelter and he therefore, rushed to the door to the Court room and he saw the two assailants, who he identified as accused Nos. 1 and 2 i.e., appellants. They were found to be possessing blood stained daggers and were trying to escape when he and Police Constable Bhanji asked them to standstill and then locked the door. What emerges from this evidence is that this witness has not seen the actual assault, but he has seen the two appellants, standing near the dead-body with blood stained daggers in their hands. A doubt was raised on the question whether this witness could have seen the two assailants standing in the Court room. The evidence shows that there are doors to the Court room which open in a Varanda and the access to the Varanda can be closed with the help of rolling shutter which was also closed. It was, therefore, argued that if the shutter to the Varanda is closed, PSI Patel could not have witnessed the assailants. However, from conjoint reading of evidence of PSI Patel and Police Constable Bhanji, it is clear that PSI Patel opened the shutter, came into the Varanda and then after seeing the assailants, closed the door to the Court room with the help of the first informant after giving warning to the accused. This would show that PSI Patel had reached right upto the threshold to the Court room and had also warned the assailants to standstill. This would certainly have provided ample opportunity to PSI Patel to see what he claims to have seen. 9.1. The evidence of Mahendra Patel also indicates that he noticed PSI Patel and first informant Bhanji shutting the door to the Court to prevent the assailants from escaping. 10. This would certainly have provided ample opportunity to PSI Patel to see what he claims to have seen. 9.1. The evidence of Mahendra Patel also indicates that he noticed PSI Patel and first informant Bhanji shutting the door to the Court to prevent the assailants from escaping. 10. The evidence of Bhanji as regards involvement of Jesing Trikambhai in the incident, as disclosed by him in the FIR, is sought to be pressed into service by the defence for discarding the evidence of Bhanji on the ground that he had a tendency to implicate person falsely and, therefore, possibility of his implicating the appellants falsely cannot be ruled out. It is not possible to accept this contention for the reason that on the very day of incident, he has before the police candidly accepted his mistake in including name of Jesing Trikambhai in FIR as one of the assailants. This reflects his bonafide and a bonafide mistake committed by him. This would reflect that the investigating agency has also acted in an unbiased manner. Nothing prevented the IO from arraying Jesing Trikambhai as one of the accused on the basis of the FIR. But upon investigation having found that there is nothing to show the involvement of Jesing Trikambhai, no charge-sheet was filed against him. 10.1. The evidence of Mahendra Ramjibhai Exhibit 133 and C.R. Thakkar Exhibit 71, both establish the occurrence. C.R. Thakkar in his deposition does not claim to have identified either victim or the assailants, but he says that incident did occur and having found the situation grave, he escaped from the place. Similarly, Mahendra Ramjibhai also does not specifically implicate the accused appellant, but he does speak of the occurrence. Deceased being attacked in the Court room itself by two persons with the help of daggers. His presence was natural at the place because he was facing a trial along with deceased for a prohibition case. They both were waiting near the door of the Court room in the Varanda. When two persons reached with daggers in their hands and on seeing them, the deceased ran into the Court room. This version is similar to the version of Bhanji. This version of Bhanji gets corroboration from the evidence of Mahendra Ramjibhai. 10.2. They both were waiting near the door of the Court room in the Varanda. When two persons reached with daggers in their hands and on seeing them, the deceased ran into the Court room. This version is similar to the version of Bhanji. This version of Bhanji gets corroboration from the evidence of Mahendra Ramjibhai. 10.2. The evidence of PSI Patel is doubted on the ground that he could not have seen the incident, but his arrival at the spot and closing the door to the Court with the help of Bhanji, is proved through deposition of not only Bhanji, but Mahendra Ramjibhai as well. The second part of challenge of PSI Kanubhai Patel’s evidence is that how did he know the assailants or the appellants. The witness claims to know accused No. 1 on account of his involvement in criminal cases of fight, but ultimately during cross-examination he admits that only one criminal case under the Bombay Prohibition Act was registered against appellant no.2. This circumstance was heavily assailed by learned Advocate Mr. Pardiwala for the appellants. We do not think that much emphasis can be given to this discrepancy. A police officer would know people involved in such activities, details of which the police officer may not have and when a question is put suddenly in cross-examination, he might have stated something to prove himself to be a true witness rather being labeling untruthful witness and in doing so, he may have committed a slip or may have committed mistake to give details by relying on some imaginary facts, which may not be true. In this regard, we refer to decision in the case of State of U.P. vs. Anil Singh reported in AIR 1988 SC p.1998, where in Para. 15 it is observed thus— “It is also our experience that invariably the witnesses add embroidery to prosecution story, perhaps for the fear of being disbelieved. But that is no ground to throw the case overboard, if true, in the main. If there is a ring of truth in the main, the case should not be rejected. It is the duty of the Court to cull out the nuggets of truth from the evidence unless there is reason to believe that the inconsistencies or falsehood are so glaring as utterly to destroy confidence in the witnesses. If there is a ring of truth in the main, the case should not be rejected. It is the duty of the Court to cull out the nuggets of truth from the evidence unless there is reason to believe that the inconsistencies or falsehood are so glaring as utterly to destroy confidence in the witnesses. It is necessary to remember that a Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. One is as important as the other. Both are public duties which the Judge has to perform.” In fact, if there is no discrepancy in evidence, the evidence would be doubted as a tutored or parrot like evidence. A little discrepancy, which is not significant, would add the strength of truthfulness to the deposition. It cannot be over looked that the evidence was recorded after two years from the date of occurrence. Under the circumstances, evidence of PSI Kanubhai Patel cannot be doubted. 11. Now comes to the question whether the prosecution story about the assailants escaping by breaking open the grill of the window to the Court room is possible. It was argued that it is no-body’s case that they had any instruments of carpenter with them. They could not have either opened or broken open the grill for escape within such a short span. However, we do find from the panchnama that the window grill was removed from the wooden frame for escape. The fact that this was used by the assailants for escape, is proved by the prosecution by producing the FSL report which would go to show that the cotton thread used for collecting the blood sample found on the window frame was of group “O”. It was argued, however, by learned Advocate Mr. Pardiwala that it is group “A”, but a close scrutiny of serologist report Exhibit 348, would go to show that it was group “O”, which is of the accused as well as deceased. It is also found that the dagger, which was seized lying just outside the window, had blood stands, group of which could not be identified, but the blade was twisted. This would go to show that the window was broken open and the assailants did escape. 11.1. It is also found that the dagger, which was seized lying just outside the window, had blood stands, group of which could not be identified, but the blade was twisted. This would go to show that the window was broken open and the assailants did escape. 11.1. At this stage, what has come on record is that witness Bhanji as well as PSI Patel have seen the appellants, one inflicting the blow and other with dagger in his hand. They say that they have locked the appellants in the Court room and when the doors were opened, the appellants were not there in the Court room. Blood of the group of the deceased or the appellants is found on the window frame. All these factors would show involvement of the appellants in the incident. Added to this fact, is the conduct of the accused persons. They have escaped and were not traceable for about 5 days till they were arrested. Their presence in the Court around the time of incident and involvement in the incident is proved and their escape for 5 days is subsequent conduct of the accused, which goes against them, namely of absconders. 11.2. It was also argued that there was a very little time for the accused - appellants to break open the window grill and escape. In this regard, it may be noted that the evidence indicates that after the accused persons were closed in the Court room by closing doors to the Court, PSI Patel went to another Court for informing the control room, but since telephone facility was not available and only intercom was provided, he went to other place and asked for informing the police head quarters. Upon head quarters being informed, PSO makes an entry in the station register and then informed the IO, who waited for the Vordhy in writing and then headed for the place of incident. In the meantime, Dy. S.P. Mr. Trivedi also received information and he also rushed to the place. Evidence of Mahendra Ramjibhai would indicate that the IO and Dy.S.P came at the place around 12.00 noon. If the incident has occurred at 11.30 and if the IO arrived at the spot at 12-00 noon, there would be a gap of about half hour in between available to the appellants to break open the window. Evidence of Mahendra Ramjibhai would indicate that the IO and Dy.S.P came at the place around 12.00 noon. If the incident has occurred at 11.30 and if the IO arrived at the spot at 12-00 noon, there would be a gap of about half hour in between available to the appellants to break open the window. It is unfortunate that Panchnama of the place of incident does not give detailed condition of either the grill or window frame, but it is revealed from the condition of the dagger that it was used for removal of the grill. We have, therefore, no hesitation to accept the evidence of the prosecution so far as the occurrence, involvement of the appellants and their escape from the place of incident is concerned. 11.3. It was also argued that the first informant has indicated name of Appellant No. 2 as Bhikha Badha in the FIR, but there is no evidence to show that second appellant Jivraj carried name of Bhikha also as a nickname. It is true that there is no such positive evidence led by the prosecution, but if the evidence is seen, accused No. 2 when he was identified by witness in T.I. Parade, has described himself as Jivraj alias Bhikha Badha Harijan, as it emerges from the evidence of the Executive Magistrate Mr. Ghanshyamsinh Jadeja Exhibit 45 as well as T.I. Parade Panchnama. Not only that, even when he was identified before the Court by witness, he has disclosed his identity as Jivraj alias Bhikha Badha Harijan. It would be appropriate to place on record the fact that this part of evidence was sought to be deleted and challenged by saying that these words were put in his mouth wrongly, by giving an application to the trial Court, which the trial Court rejected. That order rejecting the application having not been challenged, has attained finality. That argument, therefore, will be of no significance and cannot be accepted. 12. Contrary to the witnesses having no motive against the accused persons to implicate them falsely, the accused persons did have a motive against the deceased. Earlier the accused persons were prosecuted by the deceased and convicted by competent Criminal Court for the offence of murder of brother of the deceased. 12. Contrary to the witnesses having no motive against the accused persons to implicate them falsely, the accused persons did have a motive against the deceased. Earlier the accused persons were prosecuted by the deceased and convicted by competent Criminal Court for the offence of murder of brother of the deceased. That order of conviction was challenged by them in the High Court by way of an appeal, which was allowed and the conviction was set aside by the High Court in recent past of the incident. This provided grudge, grievance or motive for the accused - appellants to assault the deceased. They all were to appear in the Court in one case or the other on the day of incident and, therefore, they would have known the possibility of the deceased being present in the Court premises and, therefore, they went to the place fully prepared for the assault by arming themselves with daggers. 13. We have examined the decisions relied upon by learned Advocate Mr. Pardiwala. He relied firstly on the decision rendered in the case of Meharaja Singh vs. State of U.P. Reported in 1994 [5] SCC 188, particularly the observations made in Para. 12 of the said judgment, where it is held that an FIR in criminal case and particularly in a murder case is a vital and valuable piece of evidence for the purpose of appreciating the evidence led at the trial. Delay in lodging the FIR often results in embellishment, which is a creature of an afterthought. On account of delay, the FIR not only gets bereft of the advantage of spontaneity, danger also creeps in of the introduction of a colored version or exaggerated story. In the instant case, however, we find that the FIR was lodged within 3 hours of the incident which cannot be considered as much of delay. It also appears from the evidence that a telephone Vordhy was sent to the police head quarters almost immediately after the incident i.e., at about 11.45 a.m. Under the circumstances, this decision cannot help the appellants. 13.1. Mr. Pardiwala then relied on the decision rendered in the case of Ramesh Baburao Devaskar vs. State of Maharashtra reported in 2007 [13] SCC 501, where it has been observed that an FIR cannot be lodged in a murder case after the inquest has been held. 13.1. Mr. Pardiwala then relied on the decision rendered in the case of Ramesh Baburao Devaskar vs. State of Maharashtra reported in 2007 [13] SCC 501, where it has been observed that an FIR cannot be lodged in a murder case after the inquest has been held. The FIR was lodged in that case on the statements made by witnesses to the informant himself at the spot. The Court observed that if that was so, why the person who gave the information did not become the first informant himself. In the instant case, it was therefore, argued that the incident occurred right before the Presiding Officer of the Court, why did he not file the FIR. It is true that the Presiding Officer has not lodged the FIR, but the information has gone to the police almost immediately and the person who has given the FIR is himself also an eye witness to the incident, who knew both the accused by name. The first informant is a Government employee and had no axe to grind against the assailants - appellants and had no reason to falsely implicate them. 13.2. The next decision which is relied upon by learned Advocate Mr. Pardiwala was rendered in the case of Ravi vs. State Rep., by Inspector of Police reported in 2008 (3) GLH 740, particularly Paras. 8 and 12, to support his argument that the evidence of first informant Bhanji and PSI Patel cannot be considered as either the wholly truthful or wholly untruthful, but is partially truthful and partially untruthful. The evidence, therefore, is infirm and an infirm evidence cannot lend credence to another infirm evidence. There cannot be any dispute on the principle, but factually, as discussed earlier, we have found that evidence of both, the first informant Bhanji Valjibhai as well as PSI Patel is truthful. There may be some discrepancy as discussed earlier. The discrepancy in the FIR by adding name of Jesing Trikambhai, has on the contrary added strength of truthfulness to the evidence of Bhanji. Discrepancy in the evidence of Bhanji would not destroy the substratum of the prosecution case. Some discrepancies, exaggerations and embroidery have to be ignored and it is the duty of the Court to reject the unbelievable, unreliable part of the evidence and accept what is found to be truthful. Discrepancy in the evidence of Bhanji would not destroy the substratum of the prosecution case. Some discrepancies, exaggerations and embroidery have to be ignored and it is the duty of the Court to reject the unbelievable, unreliable part of the evidence and accept what is found to be truthful. The evidence of PSI Patel and first informant Bhanji gets corroboration from the evidence of Mahendra Ramjibhai about they being present when the incident occurred and about the occurrence of the incident. Under the circumstances, it is not possible to hold that the evidence of PSI Patel and/or evidence of Bhanji Valjibhai Gohil suffers from a incurable defect of untruthfulness, which is not severable from the truth. 14. What emerges from the foregoing discussion is that witness Bhanji Exhibit 193 was present in the Court as the Court Duty Constable. He has seen the incident. He has identified both the assailants. Similarly PSI Patel reaches the spot soon thereafter and helps first informant Bhanji in shutting the assailants into the Court room by shutting the doors. The occurrence is seen by witness Mahendra Ramjibhai Exhibit 133 and C.R. Thakkar Presiding Officer of the Court Exhibit 71. Presence of all these witnesses is natural at the spot. They are not shown to be having any prejudice, bias, animosity or prejudice against the accused persons and no reason is shown which may prompt them or provide a motive to them to falsely implicate the appellants. Their evidence, therefore, has to be accepted, which clearly implicates the appellants. The act of the appellants is found to be murder. They have committed this act with a knowledge that the deceased would be available at the premises at the relevant time. They have gone to the Court premises armed with daggers and they used such daggers shamelessly and ruthlessly in presence of so many witnesses. In our opinion, therefore, no fault can be found when the trial Court recorded their conviction and awarded sentence as discussed hereinabove on the basis of the evidence. We do not find any merits in the appeal. The appeal, therefore, fails and appeal stands dismissed. 15. Learned Advocate Mr. Pardiwala submitted that the Appellant No. 2 is on bail. In our opinion, therefore, no fault can be found when the trial Court recorded their conviction and awarded sentence as discussed hereinabove on the basis of the evidence. We do not find any merits in the appeal. The appeal, therefore, fails and appeal stands dismissed. 15. Learned Advocate Mr. Pardiwala submitted that the Appellant No. 2 is on bail. The sentence was suspended and he was released on bail by way of order of this Court in September 2004 as he was found to be suffering from fibrosis bronchitises of left lung and is presently under treatment of Dr. Amit Hapani of Rajkot. Considering this aspect, we direct the Appellant No. 2 to surrender to custody within a period of four weeks from today, failing which it would be open for the Sessions Court to take coercive action to store him to the prison.