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2016 DIGILAW 855 (GUJ)

State of Gujarat v. Kishor Chhanabhai Nayaka

2016-04-19

A.J.SHASTRI, M.R.SHAH

body2016
JUDGMENT : A.J. Shastri, J. 1. Present appeal under section 378 of the Criminal Procedure Code, 1973 has been preferred by the appellant - State of Gujarat challenging the impugned judgment and order of acquittal dated 18.11.2005 passed by the Presiding Officer, Fast Track Court, Valsad in Sessions Case No. 70 of 2004 acquitting the respondents herein - original accused for the offences punishable under sections 337 and302 read with section 34 of the Indian Penal Code. 2. The brief facts of the present case, in nutshell, are as under: "[2.1] It is the case of the prosecution that the original complainant - Minaben Lalllubhai Halpati is residing with her family at Village Motiwada. It is further the case of the prosecution that the accused persons namely Kishor Chhanabhai Nayka, Dilip Chhanabhai Nayka and Gulabbhai Chhanabhai Nayka, who were residing behind the house of the complainant, had come at the house of the complainant for quarrel with regard to the land adjacent to her house and at that time, her husband - Lalubhai Halpati told them to ask the owner of the land Kikubhai Dhedakabhai relating to the said land. It stated in the complaint that with the said reply of the husband of the complainant, the accused persons excited and beaten him (husband of the complainant) whereby on right hand of the husband of the complainant sustained fracture injury. At the relevant point of time, with a view to see that the incident may not further be infuriated, a complaint was not registered by her and out of these three accused one Dilip Chhanabhai (accused No. 2) was, practically every day, abusing to the members of the family. [2.2] It is further stated in the complaint that on 24.05.2004, in the morning, when the complainant was sitting the backside portion of her house at about 9.00 a.m., Dilipbhai Chhanabhai (accused No. 2), by using abusing language, pelted stone on her house, which caused head injury to the complainant and attempted another stone throw which caused the injury on the hand of the complainant. On account of said incident, the members, who were present in the house including the husband of the complainant, came out and, thereafter, her son - Shailesh and her daughter-in-law - Asha took the complainant to the government hospital for treatment at Udwada where they waited for doctor approximately 2 hours. On account of said incident, the members, who were present in the house including the husband of the complainant, came out and, thereafter, her son - Shailesh and her daughter-in-law - Asha took the complainant to the government hospital for treatment at Udwada where they waited for doctor approximately 2 hours. When the doctor did not come in time, she took to another doctor - Kishorbhai where the treatment was started and at that time, Asha - wife of Shailesh went to the house and around 11.45 a.m., she (Asha) came back to the hospital in frighten condition and conveyed that Kishorbhai Chhanabhai, Dilipbhai Chhanabhai and Gulabbhai Chhanabhai have beaten to the father namely Lalubhai on the Ota of the house where several people have gathered near the house and, therefore, they immediately went to the house in rickshaw. It is further stated in the complaint that the accused persons, who were residing back side the house of the complainant, have tied the hands and legs of the husband of the complainant with bedstead and wooden pole situated at the Ota of the house. It is further stated in the complaint that when the blood was oozing from the nose of the husband of the complainant, Kishorbhai along with his two brothers namely Dilipbhai and Gulabbhai locked the house and had run away. It is alleged in the complaint that the complainant - Minaben straightway went to Pardi Police Station and informed about the incident. The P.S.I of Pardi Police Station visited the house of Kishorbhai Chhanabhai situated at Motiwada and they found the husband - Lalubhai died and succumbed to the serious injury. The said complaint was recorded by P.S.I., Pardi Police Station. The complaint was registered as First Information Report being C.R. No. I-97/2004 for the offences punishable under sections 302, 337 read with section 34 of the Indian Penal Code on 24.05.2004 by the Police Inspector, Pardi Police Station." 3. It is required to be noted that as against the said complaint of Minaben, simultaneously, the original accused No. 1 has also registered the First Information Report being C.R. No. I-98/2004 with Pardi Police Station for the offences punishable under Sections 324, 323, 427, 504, 506(2) of the Indian Penal Code. It is required to be noted that as against the said complaint of Minaben, simultaneously, the original accused No. 1 has also registered the First Information Report being C.R. No. I-98/2004 with Pardi Police Station for the offences punishable under Sections 324, 323, 427, 504, 506(2) of the Indian Penal Code. The accused No. 1, in the said complaint, has specifically asserted that Lalubhai Mangalbhai Halpati, who is residing behind the house of the complainant (accused No. 1), is having frequent quarreling on account of the dispute pertaining to the land. On 24.05.2004, at about 8.30 a.m., when the complainant (accused No. 1 in the present case) was adjusting nalia, Lalubhai came to his house. At that time, the younger brother Dilip of accused No. 1 and the wife conveyed Lalubhai that why he was breaking nalia of their house and on account of that Lalubhai brought an iron article from his house and abused younger brother - Dilip and has pelted stone towards Dilip which dashed with wall and diverted to Minaben wife of Lalubhai, who sustained head injury and while she was being taken to the hospital, Lalubhai pulled out a knife from the back side pocket of his pent and threatened that today out of three one will be killed. On account of that altercation, Lalubhai rushed towards the house of accused No. 1 and tried to beat another younger brother - Gulab and on account of that scuffle Dilip sustained injury on neck portion and, therefore, this incident which took place at the behest of Lalubhai, the original accused No. 1 has lodged the aforesaid First Information Report being C.R. No. I-98/2004 with Pardi Police Station for the offences punishable under Sections 324, 323, 427, 504, 506(2) of the Indian Penal Code against Lalubhai. 4. So far as the complaint being C.R. No. I- 98/2004 registered with Pardi Police Station for the offences punishable under Sections 324, 323, 427, 504, 506(2) of the Indian Penal Code is concerned, Police Sub Inspector - Jagdishbhai Seshgiri Nayak brought the complaint to P.S.I. - Manubhai Kanjibhai Mahala at Pardi Police Station, while he was on duty. 4. So far as the complaint being C.R. No. I- 98/2004 registered with Pardi Police Station for the offences punishable under Sections 324, 323, 427, 504, 506(2) of the Indian Penal Code is concerned, Police Sub Inspector - Jagdishbhai Seshgiri Nayak brought the complaint to P.S.I. - Manubhai Kanjibhai Mahala at Pardi Police Station, while he was on duty. The complaint filed by Minaben came to be recorded in the station diary vide entry No. 14 and the complaint filed by Kishorbhai came to be recorded in the station diary vide entry No. 18 and the report under section 157 of the Criminal Procedure Code, 1973 came to be prepared. That, initially, the said First Information Report was investigated by the Police Sub Inspector - Jagdishbhai Seshgiri Nayak, Pardi Police Station who prepared an inquest panchnama of the deceased; deadbody of Lalubhai came to be sent for postmortem to the government hospital, panchnama of the scene of offence; statement of the witnesses have been recorded and all the three accused namely Kishorbhai Chhanabhai, Dilipbhai Chhanabhai and Gulabbhai Chhanabhai came to be arrested; prepared panchnama of their body and recovered the clothes of the accused and also taken the samples and sent for analysis to the F.S.L., Surat. The thumb impression of the complainant came to be taken in the complaint. Shri J.R. Patel, F.S.L. Officer was called who visited the place of incident and all necessary steps have been taken by the Investigating Officer as stated above in connection with the complaint which has been filed by Minaben Lalubhai Halpati. 5. That, initially, the said First Information Report was investigated by the Police Sub Inspector - Jagdishbhai Seshgiri Nayak, Pardi Police Station and, thereafter, on transfer of officer, the investigation was handed over to P.S.I. - D.V. Rana. That, after the investigation, the charge-sheet came to be filed against the respondents herein - original accused for the offences punishable under sections 302, 337,34 of the Indian Penal Code, in the Court of learned Judicial Magistrate, First Class, Pardi. 6. That as the case was exclusively triable by the Court of Sessions, the learned Magistrate committed the case to the Sessions Court, Valsad which came up for consideration with Fast Track Court, Valsad which was numbered as Sessions Case No. 70/2004. 6. That as the case was exclusively triable by the Court of Sessions, the learned Magistrate committed the case to the Sessions Court, Valsad which came up for consideration with Fast Track Court, Valsad which was numbered as Sessions Case No. 70/2004. The learned trial Court framed the charge against the accused for the offences punishable under sections 302, 337, 34 of the Indian Penal Code. The accused pleaded not guilty and therefore, the accused came to be tried by the learned trial Court for the aforesaid offences. 7. To prove the case against the accused, the prosecution examined the following witnesses. 8. Through the aforesaid witnesses, the prosecution also brought on record the following document evidence. 9. After closing of the evidence of the prosecution, further statement of the accused was recorded under section 313 of the Criminal Procedure Code wherein accused persons denied having committed the offence, as alleged. 10. In the said statement under section 313 of the Criminal Procedure Code, the accused have denied the crime being committed, as a result of which the case against them proceeded further and to prove the case, written arguments came to be submitted by the complainant side. It was broadly contended to prove the case that it is a homicidal death, which is reflected from the material on record. It was also contended that the depositions of the witnesses from the side of the prosecution have proved the case of prosecution beyond reasonable doubt that accused have murdered of Lalubhai. It was also asserted that the injuries which have been reflected are sufficient to cause the death and the same is supported by medical evidence as well. It was contended that deposition of Dr. Mohammad at Exhibit 21 also reflects that the injuries were sufficient enough to cause death and the injuries shown in the postmortem note came to be proved having been caused by the accused persons and, therefore, it was contended that the case is proved beyond reasonable doubt by the prosecution. It was, therefore, contended that the impugned judgment and order of acquittal dated 18.11.2005 passed by the learned Presiding Officer, Fast Track Court, Valsad is not justified. As against this, the case of defence appears to be based mainly on solitary eye witness namely P.W.6 - Ashaben whose testimony is not found to be trustworthy. It was, therefore, contended that the impugned judgment and order of acquittal dated 18.11.2005 passed by the learned Presiding Officer, Fast Track Court, Valsad is not justified. As against this, the case of defence appears to be based mainly on solitary eye witness namely P.W.6 - Ashaben whose testimony is not found to be trustworthy. It appears that the deposition of said witness has been concocted and got up. The entire deposition of the said witness - Ashaben is not inspiring any confidence in the case of the prosecution and the story put up by Ashaben claiming to be eye witness appears to be, thoroughly, improbable. It was contended by the defence side that the conduct of Ashaben also speaks volume about it and the said conduct is very relevant to ascertain credential this witness. The unnatural conduct of Ashaben, in not taking any steps for saving Lalubhai, while seeing attack on the accused. It was contended that the complaint at Exhibit 50 which has been given by accused No. 1 - Kishorbhai has not been properly being explained or dealt with. It was contended that on the contrary, the deceased Lalubhai picked up the quarrel and out of which accused No. 2 sustained injuries. It was contended that the prosecution has miserably failed to prove the case against the accused and injuries which said to have been caused, are not probable as was tried to be reflected by the prosecution. Another material conduct in not bringing this incident, at initial stage, to Udwada Police Station and then to give complaint at Pardi Police Station also speaks volume about it. It was contended that from over all material on record, the prosecution has not proved the case against the accused. From the aforesaid circumstances and the contentions raised by both the sides and upon completion of full-fledged trial, on the basis of the material on record, the learned trial Court has acquitted the original accused by giving them benefit of doubt, which has given rise to the present appeal. 11. Learned Additional Public Prosecutor for the appellant - State has vehemently submitted that the impugned judgment and order of acquittal passed by the learned trial Court is not in consonance with the evidence on record. 11. Learned Additional Public Prosecutor for the appellant - State has vehemently submitted that the impugned judgment and order of acquittal passed by the learned trial Court is not in consonance with the evidence on record. It is submitted by the learned Additional Public Prosecutor that the learned trial Court has committed an error in not appreciating the oral as well as documentary evidence to justify the order of acquittal of the accused. It is submitted by the learned Additional Public Prosecutor that version of P.W.5 - Minaben, whose deposition recorded at Exhibit 26 has not been construed in its true perspective by the trial Court. In addition to that, it is submitted that deposition of P.W.6 - Ashaben has also not properly been appreciated rather misread by learned trial Court while passing the order of acquittal. The P.W.6 - Ashahben, Exhibit 29, who is an eye witness of the incident, has specifically deposed and narrated the entire incident which took place in front of her and having not appreciating the same, the learned trial Court has committed an error in passing the order of acquittal. It is submitted by learned Additional Public Prosecutor that it was borne out from the evidence on record that the death of the deceased Lalubhai has caused on account of assault given by the accused persons. However, the evidence has not been properly appreciated by the learned trial Court. It is submitted by the learned Additional Public Prosecutor that the injuries caused to the deceased as mentioned in the postmortem note supported by the evidence of the medical officer have clearly spelt out that the injuries were sufficient enough to cause death and the statements of the witnesses have corroborated the case of the prosecution. It is submitted by the learned Additional Public Prosecutor that the panch witnesses, who have turned hostile, is not a ground to acquit the accused persons and simply because the panchas have turned hostile, the other material which corroborates further ought not to have been discarded. It is submitted that the learned trial Court has not assigned justifiable cogent reasons to substantiate the order of acquittal. It is submitted by learned Additional Public Prosecutor that the findings recorded by the learned trial Court while acquitting the original accused are perverse and on misinterpretation of the evidence on record. It is submitted that the learned trial Court has not assigned justifiable cogent reasons to substantiate the order of acquittal. It is submitted by learned Additional Public Prosecutor that the findings recorded by the learned trial Court while acquitting the original accused are perverse and on misinterpretation of the evidence on record. It is submitted that the learned trial Court has, as such, committed a grave error in acquitting the original accused by giving benefit of doubt. Making above submissions and observations, it is requested to allow the present appeal and to quash and set aside the impugned judgment and order passed by the learned trial Court and, consequently, to convict the original accused for the offence punishable under Section 302, 337 and 34 of the Indian Penal Code and to impose maximum punishment provided for the offence under Section 302, 337 and 34 of the Indian Penal Code. 12. Learned advocate appearing on behalf of the respondents - accused has vehemently submitted that the order passed by the learned trial Court is just and proper and is based upon proper appreciation of material and evidence on record. It is submitted by the learned advocate for the respondents that the case of the prosecution false only mainly the ground of so-called solitary eye witness i.e. P.W.6 - Ashaben whose version is not inspiring any confidence. It is submitted by the learned advocate for the respondents that the conduct of Ashaben, cannot be said to be natural conduct and, therefore, the conduct of Ashaben has been brought just with a view to substantiate the case of the prosecution. Learned advocate for the respondents has further submitted that from the evidence on record, the learned trial court has justifiably appreciated the evidence on record i.e. P.W.5 - Minaben as well as P.W.6 - Ashaben. It is submitted by the learned advocate for the respondents that the complaint which has been filed by accused No. 1 reflects that deceased - Lalubhai has caused the injuries to accused No. 2 - Dilipbhai. It is submitted that the prosecution has miserably failed in establishing the guilt of the respondents. Learned advocate for the respondents has drawn attention of this Court to the deposition of P.W.11 i.e. Jagdishbhai Nayak, P.S.I., Exhibit 42 and has submitted that the complainant - Minaben is not an eye witness of the incident in question. It is submitted that the prosecution has miserably failed in establishing the guilt of the respondents. Learned advocate for the respondents has drawn attention of this Court to the deposition of P.W.11 i.e. Jagdishbhai Nayak, P.S.I., Exhibit 42 and has submitted that the complainant - Minaben is not an eye witness of the incident in question. It is submitted by learned advocate for the respondents that the complainant - Minaben has neither touched nor disclosed the case/complaint being filed by the respondents though she was a witness to the said incident as alleged in the complaint at Exhibit 50. It is further submitted by learned advocate for the respondents that on the basis of the evidence of Mr. Jagdishbhai Nayak, the incident in question has not being promptly reported immediate to nearby police station and then by lodging the complaint belatedly and attempt is made somehow to rope the accused persons. It is further submitted by the learned advocate for the respondents that the conduct of remaining silent on watching incident in question as alleged by the prosecution is unexplained which raises serious doubt about the said witness - P.W.6. It is submitted by the learned advocate for the respondents that when the accused are residing just behind the back side of the house of the complainant and especially when P.W.6 - Ashaben has seen the incident, there was no occasion to search the deceased from the spot. All these contradictions and conduct on the part of the prosecution raised serious doubt of credential of the witness which ultimately properly appreciated by the learned trial Court, while passing the order of acquittal. The learned trial Court has thoroughly gone through the material on record and the evidence led before it by the prosecution and has submitted that the order passed by the learned trial Court is just and proper and on proper appreciation of evidence and material on record and in consonance with law. Learned advocate appearing on behalf of the respondents - original accused has submitted that in the present case, the learned trial Court has rightly acquitted the accused by giving them benefit of doubt. Learned advocate appearing on behalf of the respondents - original accused has submitted that in the present case, the learned trial Court has rightly acquitted the accused by giving them benefit of doubt. It is submitted by the learned advocate for the accused that the present appeal is against the impugned judgment and order of acquittal and hence unless and until, the Appellate Court finds that the findings recorded by the learned Trial Court are perverse and contrary to the evidence on record, which has resulted into miscarriage of justice, the interference of the Appellate Court is not called for. It is submitted that in the present case, while acquitting the original accused by giving them benefit of doubt, the learned trial Court has given cogent reasons and the findings recorded by the learned trial Court, on appreciation of evidence and, therefore, the impugned judgment and order of acquittal is not required to be interfered with. 13. In the alternative, it is submitted that at the best, on account of consideration of two circumstances which reflect from the complaint filed by P.W.5 - Minaben and the complaint filed by accused No. 1, Exhibit 50, it is submitted by the learned advocate appearing on behalf of the respondents - accused that at the most, it can be said that the case may fall under Section 304 Part II of the Indian Penal Code. It is submitted that there was no intention on the part of the accused to cause death of the deceased. It is submitted that the case may not fall under any of the clauses of Section 300 of the Indian Penal Code and the case may fall under Section 304 Part - II of the Indian Penal Code. 14. Learned advocate appearing on behalf of the accused has drawn the attention of the Court to the decisions of the Hon'ble Supreme Court in the case of Hardeep v. State of Haryana and another, reported in (2002) 7 SCC 11 and in the case of D. Thamodran v. Kandasamy and another reported in 2015 (10) Scale 500 . We are of the opinion that each case is dependent upon its own factual matrix and therefore with care and caution we are of the opinion that the case law cited may not be helpful to the learned advocate for the accused to substantiate his contentions. We are of the opinion that each case is dependent upon its own factual matrix and therefore with care and caution we are of the opinion that the case law cited may not be helpful to the learned advocate for the accused to substantiate his contentions. Here in this case, the benefit of doubt which has been given by ignoring established presence and, therefore, there is no case of false implication, but here it is case of their own complaint at Exhibit 50, they have established their presence which is uncontroverted by any cogent material and, therefore, the ratio laid down by the Hon'ble Supreme Court in the case of Hardeep (supra) may not be helpful. Of course, so far as another decision in the case of D. Thamodaran (supra) is concerned, we are of the opinion that the case of the prosecution is not suffering from that much various infirmities and inconsistence and inherent improbabilities which may allow the accused to scot free. As said earlier i.e. cogent material to prove the guilt of accused and, therefore, whatever testimony which is tried to be relied upon is not that much fatal to the case of the prosecution which may allow the accused to go away with an order of acquittal. The learned Judge has miserably failed in considering such undisputed record which is appearing on the material and, therefore, considering this overall facts and circumstances, we are of the opinion that following aspects worth to be taken into consideration. 15. Heard learned advocates appearing on behalf of the respective parties. 16. We have considered in detail the impugned judgment and order of acquittal passed by the learned Trial Court. We have gone through the offence recorded by the learned trial Court, while acquitting the original accused by giving benefit of doubt. We have appreciated and re-appreciated the entire evidence on record. 17. Before adverting to the contentions raised by respective sides, we would like to emphasis the law laid down by the Hon'ble Supreme Court at the time when the Court has to deal with an appeal against an order of acquittal. In catena of decisions, the Hon'ble Supreme Court has propounded proposition that the Court sitting in an appeal against the order of acquittal can re-appreciate the evidence to ascertain actual commission of offence by the accused, if any, for preventing miscarriage of justice. In catena of decisions, the Hon'ble Supreme Court has propounded proposition that the Court sitting in an appeal against the order of acquittal can re-appreciate the evidence to ascertain actual commission of offence by the accused, if any, for preventing miscarriage of justice. It has been propounded that the Appellate Court is not devoid of power to interfere with a judgmenet of acquittal, in respect of re-appreciation of evidence, despite existence of overwhelming evidence on record thereto. For this appreciation, we may refer to the decision delivered by the Hon'ble Supreme Court in the case of Swamy Prasad v. State of Madhya Pradesh, reported in 2007 AIR SCW 6562. We may further consider while dealing with the present appeal, the law laid down by the Hon'ble Supreme Court in the case of Girja Prasad (D) by LRs v. State of Madhya Pradesh, reported in 2007 AIR SWW 5589 wherein the Hon'ble Supreme Court has propounded that "an Appellate Court is vested with the power to re-appreciate and reweigh the evidence on record in respect of acquittal of the accused, in tune with the Principles of Criminal Jurisprudence, despite existence of Presumption of Innocence of the accused". We have also considered the another proposition of law laid down by the Hon'ble Supreme Court in the case of Killakatha Parambath Sasi and others v. State of Kerala, reported in AIR 2011 SC 1064 wherein the Hon'ble Supreme Court has propounded the proposition that "High Court in exercise of its Appellate Powers can interfere with findings of acquittal of accused by Trial Court, only in circumstances where said findings are perverse and not borne out of evidence or not possible on evidence, which would otherwise be travesty of justice". While dealing with this appeal, we have also considered a decision of the Hon'ble Supreme Court in the case of State of Rajasthan v. Shera Ram alias Vishnu Dutta reported in AIR 2012 SC 1 wherein limitation of exercise of appellate jurisdiction is also summarized by the Hon'ble Supreme Court by pointing out that "unless judgment of Lower Court is contrary to evidence of palpably erroneous, an Appellate Court should be reluctant in having to interfere with said judgment". Now, keeping in mind this parameters of propositions of law laid down by the Hon'ble Supreme Court, while dealing with the appeal against the acquittal, we consider the observations made by the Hon'ble Apex Court in the case of Mohanlal Shamji Soni v. Union of India and another, reported in 1991 (1) Crimes 818. In the said decision, the Hon'ble Supreme Court was of course considering the power of the Court under section 311 of the Criminal Procedure Code. But, in paragraph No. 6 of the said decision, it has been observed by the Hon'ble Supreme Court that it is cardinal rule in the law of evidence that the best available evidence should be brought before the Court to prove a fact or the point in issue. It has also been observed in the said paragraph that the Court is not empowered under the provisions of the Code to compel either the prosecution or the defence to examine any particular witness or witnesses on their sides. Nonetheless if either of the parties withholds any evidence which could be produced and which, if produced, be unfavourable to the party withholding such evidence, the court can draw a presumption under illustration (g) to section 114 of the Evidence Act. In such a situation a question that arises for consideration is whether the presiding officer of a Court should simply sit as a mere umpire at a contest between two parties and declare at the end of the combat who has won and who has lost or is there not any legal duty of his own, independent of the parties to take an active role in the proceedings in findings the truth and administering justice? It is a well accepted and settled principle that a Court must discharge its statutory functions - whether discretionary or obligatory - according to law in dispensing justice because it is the duty of a Court not only to do justice but also to ensure that justice is being done. In the case of Zahira Habibulla H. Sheikh and another v. State of Gujarat and other, reported in (2004) 4 SCC 158 , the Hon'ble Supreme Court had an occasion to consider purpose of trial, role of the presiding officer in criminal trial and the Hon'ble Supreme Court in paragraph Nos. In the case of Zahira Habibulla H. Sheikh and another v. State of Gujarat and other, reported in (2004) 4 SCC 158 , the Hon'ble Supreme Court had an occasion to consider purpose of trial, role of the presiding officer in criminal trial and the Hon'ble Supreme Court in paragraph Nos. 30, 35, 36 and 38 has enunciated the principle about the role of presiding officer while conducting the trial in criminal matter. For immediate perusal, we may refer to the same by reproducing hereinafter. "30. Right from the inception of the judicial system it has been accepted that discovery, vindication and establishment of truth are the main purposes underlying existence of Courts of justice. The operating principles for a fair trial permeate the common law in both civil and criminal contexts. Application of these principles involve a delicate judicial balancing of competing interests in a criminal trial, the interests of the accused and the public and to a great extent that of the victim have to be weighed not losing sight of the public interest involved in the prosecution of persons who commit offences. 35. This Court has often emphasised that in a criminal case the fate of the proceedings cannot always be left entirely in the hands of the parties, crimes being public wrongs in breach and violation of public rights and duties, which affect the whole community as a community and harmful to the society in general. The concept of fair trial entails familiar triangulation of interests of the accused, the victim and the society and it is the community that acts through the State and prosecuting agencies. Interests of society is not to be treated completely with disdain and as persona non grata. Courts have always been considered to have an overriding duty to maintain public confidence in the administration of justice often referred to as the duty to vindicate and uphold the 'majesty of the law'. Due administration of justice has always been viewed as a continuous process, not confined to determination of the particular case, protecting its ability to function as a Court of law in the future as in the case before it. Due administration of justice has always been viewed as a continuous process, not confined to determination of the particular case, protecting its ability to function as a Court of law in the future as in the case before it. If a criminal Court is to be an effective instrument in dispensing justice, the Presiding Judge must cease to be a spectator and a mere recording machine by becoming a participant in the trial evincing intelligence, active interest and elicit all relevant materials necessary for reaching the correct conclusion, to find out the truth, and administer justice with fairness and impartiality both to the parties and to the community it serves. Courts administering criminal justice cannot turn a blind eye to vexatious or oppressive conduct that has occurred in relation to proceedings, even if a fair trial is still possible, except at the risk of undermining the fair name and standing of the judges as impartial and independent adjudicators. 36. The principles of rule of law and due process are closely linked with human rights protection. Such rights can be protected effectively when a citizen has recourse to the Courts of law. It has to be unmistakably understood that a trial which is primarily aimed at ascertaining truth has to be fair to all concerned. There can be no analytical, all comprehensive or exhaustive definition of the concept of a fair trial, and it may have to be determined in seemingly infinite variety of actual situations with the ultimate object in mind viz. whether something that was done or said either before or at the trial deprived the quality of fairness to a degree where a miscarriage of justice has resulted. It will not be correct to say that it is only the accused who must be fairly dealt with. That would be turning Nelson's eyes to the needs of the society at large and the victims or their family members and relatives. Each one has an inbuilt right to be dealt with fairly in a criminal trial. Denial of a fair trial is as much injustice to the accused as is to the victim and the society. Fair trial obviously would mean a trial before an impartial Judge, a fair prosecutor and atmosphere of judicial calm. Each one has an inbuilt right to be dealt with fairly in a criminal trial. Denial of a fair trial is as much injustice to the accused as is to the victim and the society. Fair trial obviously would mean a trial before an impartial Judge, a fair prosecutor and atmosphere of judicial calm. Fair trial means a trial in which bias or prejudice for or against the accused, the witnesses, or the cause which is being tried is eliminated. If the witnesses get threatened or are forced to give false evidence that also would not result in a fair trial. The failure to hear material witnesses is certainly denial of fair trial. 38. A criminal trial is a judicial examination of the issues in the case and its purpose is to arrive at a judgment on an issue as a fact or relevant facts which may lead to the discovery of the fact issue and obtain proof of such facts at which the prosecution and the accused have arrived by their pleadings; the controlling question being the guilt or innocence of the accused. Since the object is to mete out justice and to convict the guilty and protect the innocent, the trial should be a search for the truth and not a bout over technicalities, and must be conducted under such rules as will protect the innocent, and punish the guilty. The proof of charge which has to be beyond reasonable doubt must depend upon judicial evaluation of the totality of the evidence, oral and circumstantial and not by an isolated scrutiny. 18. Now keeping in mind this proposition, we are constrained to appreciate, re-appreciate and examine the overall material on record to ascertain the truth about the incident in question. 19. From the perusal of the record, it is true that prima facie look at the evidence of the P.W.6 there appears to be some contradictions, but those contradictions do not seem to be very material contradictions which may ultimately prove to be fatal to the case of the prosecution. From the evidence on record, it clearly emerges that while giving complaint by accused No. 1 - Kishorbhai at Exhibit 50 and narrating the incident with the deceased Lalubhai, his presence is unequivocally established. From the evidence on record, it clearly emerges that while giving complaint by accused No. 1 - Kishorbhai at Exhibit 50 and narrating the incident with the deceased Lalubhai, his presence is unequivocally established. From the material on record, it also transpires that accused No. 2 - Dilipbhai who sustained injuries by knife of deceased Lalubhai has also clearly reflected his presence on the spot and even the arrest panchnama and the photographs clearly reflect an injury on neck of accused No. 2 and, therefore, irrespective of some contradictions of Ashaben, P.W.6, it clearly emerges that the incident did take place out of which two complaints came to be filed - one by P.W.5 - Minaben and another by accused No. 1 - Kishorbhai at Exhibit 50. It also emerges from the record that only on account of the said incident the death of Lalubhai is caused. 20. It is required to be noted that in the present case original accused No. 1 himself gave a cross complaint, being C.R. No. I-98/2004, which was lodged with Pardi Police Station, which was given after approximately a period of five hours from lodging the complaint by the complainant - Minaben in the present case. The complaint, Exhibit 50 has been taken note of by the prosecution by examining the concerned Police Officer Jagdishbhai Nayak. It is also required to be noted that in the said complaint which was given by the original accused No. 1, he narrated the entire incident and he also stated that the deceased Lalubhai caused injury to Dilipbhai by knife and that too on the neck. The aforesaid fact is established and proved from the arrest panchnama and even from the photograph, which was taken at the time of his arrest. Even from the arrest panchnama and the recovery of the clothes of the accused, the blood stains are found from the clothes of the accused. The aforesaid circumstance have not been explained by the accused. There is no explanation whatsoever by the accused even in their further statement under section 313 of the Criminal Procedure Code explaining the injury on Dilipbhai - original accused No. 2 and the blood stains on their clothes. The aforesaid circumstance have not been explained by the accused. There is no explanation whatsoever by the accused even in their further statement under section 313 of the Criminal Procedure Code explaining the injury on Dilipbhai - original accused No. 2 and the blood stains on their clothes. On the contrary accused No. 1 tried to dispute the complaint given by Minaben, P.W.5 which as observed hereinabove has been proved by the prosecution by examining the concerned Police Officer who recorded the FIR not only that even in the station diary which is on record, the second FIR being C.R. No. I-98/2004 which was given by original accused No. 1 has been recorded. Under the circumstances, presence of the original accused at the time of commission of the offence and their participation and active role in commission of offence is established the learned trial Court has already given the finding of the death of the deceased as homicidal death. However, considering the overall facts and circumstances of the case, more particularly, even the FIR, which was given by original accused No. 1 being C.R. No. 98/2004 and even the injuries sustained by original accused No. 2 - Dilipbhai on his neck which was alleged to have been given by the deceased and the prosecution has been successful in proving that there was prior enmity between the original accused and the deceased and even considering the fact that nalia on the house of the original accused were found to be broken. It appears that the quarrel took place between the original accused and the complainant side, on account of which incident had taken place. From the overall material on record, we are constrained to take the note of a situation which the learned trial Court has failed to appreciate that the incident in question which occurred in which the presence of the accused is unequivocally established and it has also been reflected from the material on record that these accused persons have caused injuries to the deceased and simply because there appears to be contradictions not of material in nature in P.W.6. We are of the opinion that the learned trial Curt has not considered and appreciated the evidence on record in its true perspective as stated hereinabove. We are of the opinion that the learned trial Curt has not considered and appreciated the evidence on record in its true perspective as stated hereinabove. The law laid down by the Hon'ble Supreme Court that it is an obligatory duty on the part of the Court of trial to examine the material on record from every angle to ascertain the truth and here truth reflects a clear commission of crime and, therefore, considering the proposition supra that the crime committed may not go unpunished, we dealt with evidence accordingly. 21. At this stage, we are also constrained to seek assistance from the proposition of law laid down by the Division Bench of this Court in the case of State of Gujarat v. Patel Ashiwinkumar Ranchhodbhai reported in 2008 (2) GLR 1748 wherein the Division Bench of this Court in paragraph No. 6 has observed as under: "6. Crimes in society are real and concrete incident actually occurs. Crimes are not fancy or imagination, which courts are called upon to decide. Therefore, greater responsibilities are to be shouldered by courts while dispensation of justice. Prosecuting agency and investigation agency are also important factor in criminal justice system. Each component must do justice to its role in doing justice to aggrieved persons. The crimes are not affecting the individual, but influences the society as a whole and, therefore, the grave crimes are not against individual but against the society. The law regulates social interests, arbitrates conflicting claims and demands. Security of persons and property of the people is an essential function of the State. This could be achieved through instrumentality of criminal law. The contagion of lawlessness would undermine the social order and lay it in ruins. Protection of society and stamping out criminal proclivity must be the object of law, which must be achieved through courts of law through the role assigned to a court. Law as a cornerstone of the edifice of order, should meet the challenges confronting the society." 22. In the aforesaid decision, the Division Bench of this Court in paragraph No. 8 has observed as under: "8. True that criminal justice deals with complex human problems and diverse human beings. On account of relations, witnesses may turn hostile and witnesses may resile when search for the truth is vigorously undertaken through instrumentality of criminal law. In the aforesaid decision, the Division Bench of this Court in paragraph No. 8 has observed as under: "8. True that criminal justice deals with complex human problems and diverse human beings. On account of relations, witnesses may turn hostile and witnesses may resile when search for the truth is vigorously undertaken through instrumentality of criminal law. In trials, therefore, it becomes the duty of the Judge presiding over a criminal trial, to appreciate the evidence from all corners, and if the evidence is not produced, though available, then, the same could be produced. The courts exist for doing justice to the persons who are affected. As aforestated, the crimes of such nature like murder are affecting the society. The court is not merely to act as a tape recorder recording the evidence, overlooking the object of trial i.e. to get at the truth. The courts cannot be oblivious to the active role to be played, for which there is not only ample scope but sufficient powers are conferred under the Code. The court has a greater duty and responsibility to render justice in a case where it appears that the role of the prosecuting agency itself is dubious. The courts are expected to perform its duties and functions effectively and true to the spirit with which the courts are sacredly entrusted the dignity and authority and an alert judge actively participating in court proceedings with a firm grip on oars enables the trial smoothly to reach at the truth. The interest of the parties in conducting the trial in such a way so as to gain success is understandable, but the obligation of the Presiding Judge to hold the proceedings as to achieve the dual objectives i.e. search for truth and delivering pure justice cannot be subdued. Wherever necessary, even courts are empowered to curb perjury. This is a fact that most of the witnesses coming in the courts despite taking oath, make false statements to suit the interest of the parties. Effective and stern action is required to be taken on such a stand, which may be taken upon the witnesses. The mere existence of penal provisions to deal with perjury would be a cruel joke with the society unless the courts stop to take evasive recourse despite proof of the commission of the offence". 23. Effective and stern action is required to be taken on such a stand, which may be taken upon the witnesses. The mere existence of penal provisions to deal with perjury would be a cruel joke with the society unless the courts stop to take evasive recourse despite proof of the commission of the offence". 23. Similarly, in the case of Krishna Mochi and others v. State of Bihar reported in AIR 2002 SC 1965 , the Hon'ble Supreme Court was constrained to observe the common experience in the recent times and for considering that and following the same, the same is reproduced herein above. "75. It is matter of common experience that in recent times there has been sharp decline of ethical values in public life even in developed countries much less developing one, like ours, where the ratio of decline is higher. Even in ordinary cases, witnesses are not inclined to depose or their evidence is not found to be credible by Courts for manifold reasons. One of the reasons may be that they do not have courage to depose against an accused because of threats to their life, more so when the offenders are habitual criminals or high ups in the Government or close to powers, which may be political, economic or other powers including muscle power. A witness may not stand the test of cross examination which may be sometime because he is a bucolic person and is not able to understand the question put to him by the skillful cross examiner and at times under the stress of cross examination, certain answers are snatched from him. When a rustic or illiterate witness faces as astute lawyer, there is found to be imbalance and, therefore, minor discrepancies have to be ignored. These days it is not difficult to gain over a witness by money power or giving him any other allurence or giving out threats to his life and/or property at the instance of persons, in/or close to powers and muscle men or their associates. Such instances are also not uncommon where a witness is not inclined to depose because in the prevailing social structure he wants to remain indifferent. It is most unfortunate that expert witnesses and the investigating agencies and other agencies which have an important role to play are also not immune from decline of values in public life. Such instances are also not uncommon where a witness is not inclined to depose because in the prevailing social structure he wants to remain indifferent. It is most unfortunate that expert witnesses and the investigating agencies and other agencies which have an important role to play are also not immune from decline of values in public life. Their evidence sometimes becomes doubtful because they do not act sincerely, take everything in a casual manner and are not able to devote proper attention and time. 76. Thus, in a criminal trial a prosecutor is faced with so many odds. The Court while appreciating the evidence should not lose sight of these realities of life and cannot afford to take an unrealistic approach by sitting in ivory tower. I find that in recent times the tendency to acquit an accused easily is galloping fast. It is very easy to pass an order of acquittal on the basis of minor points raised in the case by a short judgment so as to achieve the yardstick of disposal. Some discrepancy is bound to be there in each and every case which should not weigh with the Court so long it does not materially affect the prosecution case. In case discrepancies pointed out are in the realm of pebbles, court should tread upon it, but if the same are boulders, court should not make an attempt to jump over the same. These days when crime is looming large and humanity is suffering and society is so much affected thereby, duties and responsibilities of the courts have become much more. Now the maxim "let hundred guilty persons be acquitted, but not a single innocent be convicted" is, in practice, changing world over and courts have been compelled to accept that "society suffers by wrong convictions and it equally suffers by wrong acquittals". I find this Court in recent times has conscientiously taken notice of these facts from time to time. Now the maxim "let hundred guilty persons be acquitted, but not a single innocent be convicted" is, in practice, changing world over and courts have been compelled to accept that "society suffers by wrong convictions and it equally suffers by wrong acquittals". I find this Court in recent times has conscientiously taken notice of these facts from time to time. In the case Inder Singh and another v. State (Delhi Administration), AIR 1978 Supreme Court 1091, Krishna Iyer, J. laid down that "Proof beyond reasonable doubt is a guideline, not a fetish and guilty man cannot get away with it because truth suffers some infirmity when projected through human processes." In the case of State of U.P. v. Anil Singh AIR 1988 Supreme Court 1998, it was held 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 the case of State of West Bengal v. Orilal Jaiswal and another (1994) 1 Supreme Court Cases 73, it was held that Justice cannot be made sterile on the plea that it is better to let hundred guilty escape than punish an innocent. Letting guilty escape is not doing justice, according to law. In the case of Mohan Singh and anr. v. State of M.P. (1999) 1 Supreme Court Reports 276, it was held that the courts have been removing chaff from the grain. It has to disperse the suspicious cloud and dust out the smear of dust as all these things clog the very truth. So long chaff, cloud and dust remains, the criminals are clothed with this protective layer to receive the benefit of doubt. So it is a solemn duty of the courts, not to merely conclude and leave the case the moment suspicions are created. It is onerous duty of the court, within permissible limit to find out the truth. It means, on one hand no innocent man should be punished but on the other hand to see no person committing an offence should get scot free. If in spite of such effort suspicion is not dissolved, it remains writ at large, benefit of doubt has to be credited to the accused." 24. It means, on one hand no innocent man should be punished but on the other hand to see no person committing an offence should get scot free. If in spite of such effort suspicion is not dissolved, it remains writ at large, benefit of doubt has to be credited to the accused." 24. In view of the aforesaid decisions and the observations of the Hon'ble Supreme Court, we are at pain to observe that looking to the material on record, it appears that the respondents - accused persons may not be allowed to scot-free more particularly when the very role and participation in commission of crime is established beyond reasonable doubt from the material on record and, therefore, we are of the opinion that at least it is a case which falls within the purview of section 304Part II of the Indian Penal Code. The manner and method in which the accused have caused injuries to the deceased at least an offence is emerged to have been committed by the accused which must visit penal consequences by holding them guilty of offence punishable under section 304 Part II of the Indian Penal Code, ignoring role played by the accused persons in commission of crime and allowing the guilty persons to run away from the clutches of law would not sub serve the object underline in the penal statute. We are of the opinion that at least role played by the accused addressed the offence punishable under section 304 Part II of the Indian Penal Code and consequently, the original accused are held guilty for the offences punishable under section 304 Part II of the Indian Penal Code and are sentenced to undergo six years Rigorous Imprisonment with fine of Rs. 2500/- and in default to undergo further three months' Rigorous Imprisonment. On the acquittal of all the accused being set aside, they are convicted for the offence punishable under section 304 Part II of the Indian Penal Code. 25. In view of the above, the Appeal is partly allowed and the case would fall under Section 304 Part II of the Indian Penal Code and the consequently the original accused are held guilty for the offences punishable under Section 304 Part II of the Indian Penal Code and are sentenced to undergo six years' Rigorous Imprisonment with fine of Rs. 2500/- and in default to undergo further three months' Rigorous Imprisonment. On the acquittal of all the accused being set aside and they are convicted for the offence punishable under Section 304 Part II of the Indian Penal Code all the accused be taken into custody forthwith to undergo the sentence. It goes without saying that whatever punishment the original accused have undergone during the trial the same may be given set off in accordance with law. Even the original accused are also held guilty for the offence punishable under section 337 of the Indian Penal Code having caused the injury on Minaben and they are sentenced to undergo six months' Rigorous imprisonment with fine of Rs. 1000/- and in default to undergo further 15 days' Rigorous Imprisonment. All sentences to run concurrently.