Holding

The conviction is upheld as the evidence, including the dying declaration and eyewitness testimony without an identification parade, is sufficient and the police investigation was bona‑fide.

Summary

The appellants (Accused Nos. 1‑4 and 6) were convicted for murder, attempted murder and related offences after a group assault on a printing press and the deceased’s residence, resulting in the death of Ramanbhai Mohanbhai. The prosecution relied on a dying declaration, medical evidence, and testimonies of six eyewitnesses, three of whom were injured, despite the absence of a formal identification parade. The appellants challenged the bona‑fides of the police investigation, the non‑mention of all accused in the dying declaration, the adequacy of medical evidence, and the admissibility of eyewitness identification without a parade. The Supreme Court held that the police investigation was bona‑fide, the dying declaration sufficiently implicated the accused, medical evidence corroborated the use of weapons, and eyewitness testimony, though weak, was not inadmissible. Consequently, the Court affirmed the findings of the Sessions Court and High Court, dismissing the appeal.

Issues considered

The police investigation was not bona‑fide and failure to record accused names early undermines the prosecution case.
The dying declaration’s omission of some accused’ names renders it insufficient.
The medical evidence does not support the prosecution’s claim of weapon‑inflicted injuries.
The eyewitness testimonies are inadmissible without a formal identification parade.
Whether the conviction is safe and the appeal under Article 136 should be entertained.

Legislation cited

Indian Penal Code, 1860s. 149, s. 302, s. 307, s. 323, s. 324, s. 326, s. 342, s. 452

Subjects

murderdying declarationidentification paradeeyewitness testimonyunlawful assemblySection 149 IPCspecial leave petitionappellate jurisdictionpolice investigationevidentiary admissibility

Judgment

RAMAN BHAI NARAN BHAl PATEL AND ORS. A
v.
STATE OF GUJARAT

NOVEMBER 30, 1999

[S.B. MAJMUDAR AND UMESH C. BANERJEE, JJ.] B

Criminal Law-Penal Code-Sections 302, 307, 323, 324, 326, 342
and 352 read with Sec. 149-Appellants attacking complainant party-One
killed due to injuries-Three injured eyewitnesses apart from dying declaration C
supporting prosecution case-Conviction and sentence by Sessions Court
confirmed by High Court--Upheld.

Identification Parade-Absence of-Whether the evidence of witnesses
becomes irrelevant-Held, N~Further held, though the evidence may be
weak it cannot be wholly inadmissible. D
Dying declaration-Non-Mention of individual names in the group of
accused-Dying declaration supported by evidence ofthe other eye witnesses-
Held, the non-mention of certain names of accused is not fatal to prosecution.

The Appellants alongwith three others were tried for offence under
Sections 302, 307, 323, 324, 326, 342 and 452 read with Section 149 of the E
Indian Penal Code. The present App~llants (accused Nos. 1-4 and 6 in the
Sessions Trial) alongwith some other persons came to the premises of a
Printing Press carrying weapons like knife, gupti, hockey stick etc. The
accused started beating 'B' who was an employee there and seriously injured
him. When they were questioned by a pan stall holder. 'K', the accused 1 and -F

-
2 pounced upon him and caused injuries to him. When deceased, who was the
owner of the printing press, came out of his residence which was close by, he
was given blows with hockey stick and he was chased and given fatal blows by
accused 1-4 and 6. Wife of deceased was present at the scene of occurrence
along with the wife of his elder brother. The elder brother of deceased who
was sitting in his house in the vicinity also witnessed the incident and reached G
the place of incident after changing his clothes. He was given an axe blow and
hockey blow by accused 1 and 2. He also saw accused 3 to 6 coming out of the
room of deceased. He helped the two women in fixing a bandage for the deceased
and took him to the hospital alongwith injured 'B' and 'K'. The victim died in
the hospital and other injured were examined as eyewitnesses in the trial. H
41
42 SUPREME COURT REPORTS [1999] SUPP. 5 S.C.R.

A The case of th~ prosecution was that there was a quarrel between the
younger brother of deceased and the Accused No. 1 alongwith his friends on
the previous day. During the quarrel Accused No 1 was slapped and as a result
the accused assaulted the brother of the deceased on the day of the incident.

On receiving a telephonic message, the PSI with other constables went
B to the spot and arranged for removing the injured to a hospital After deceased
underwent a preliminary treatment his statement was recorded which was
subsequently treated as a dying declaration, as he died later in the day. Charge
Sheet was filed against Accused 1 to 8. The Sessions judge convicted the
Appellants (Accused 1 to 4 and 6) and sentenced them to undergo imprisonment
C for life among other punishment. Appeal before the High Court by the
Appellants was dismissed. The Sessions Court relied upon the dying
declaration and the evidence of three injured eyewitnesses, evidence of the
wife of deceased and that of his elder brother, P. W. 5 a tenant of the building
and the younger brother of deceased.

· D In appeal to this Court, the Appellants contended that there are
suspicious features in the case which throw doubt on the bonafides of Police
Investigation and therefore it cannot be said that the prosecution· has proved
the case beyond reasonable doubt, that the Police did not record the names of
the accused at the earliest opportunity but they waited and deliberated as to
E ·who should be inc~uded in the net of the accused,·that the FIR based on dying
declaration does not disctpse the names of all the accused, that medical
evidence does not support the prosecution case that in the absence of test
identification parade, the evidence of eyewitness identifying the accused is
inadmissible and totally value less, that on a holiday the witness (younger
brother of the deceased had no occasion to stand the pan galla and he is a
F chance witness; that if that was so then accused would have first assaulted
him instead of assaulting others, that P.W.5. was a chance witness and that
when the eyewitnesses do not know the accused alleged to have participated
in the offence it is not known as to who are the real accused.

G Dismissing the appeal, the Court·

HELD : 1. The contention of the appellants that the police investigation
is not bona fide and that they did not record the names of the accused at the
earliest opportunity but they waited and deliberated as to who should be
included in the net of the accused, is incorrect. According to the prosecution
H case and as supported by eyewitness account, a group of persons armed with
RAMAN BHAI NARAN BHAI PATEL v. STATE 43

deadly weapons came in by speeding vehicles like scooter and bullet A
motorcycles in batches and mounted an assault in broad day light near the
Press as well as in the house of deceased and also in the near vicinity thereof
resulting in serious injuries by sharp cutting instrument to eyewitnesses
PW2, PW14 and his elder brother. The injuries suffered by the deceased were
apparently of a very serious nature as his intestine had come out, as noted by B
the doctor who treated him and a piece of his intestine was even found lying
on the spot and there was blood shed all round. In such a situation the anxiety
of PSI to first remove the injured to hospital to save their lives instead of
going into the meticulous details by way of interrogating the persons standing
nearby for finding out the cause of the assault, cannot be said to be unnatural
or uncalled for from the evidence of PSI it cannot be said that the police C
investigation was not a bonafide one. The observation of the High Court that
the PSI has miserably failed to come up to an ideal standard of investigation
is not justified. Once the in,jured eyewitnesses and other eyewitnesses have
been found to be reliable and especially when the dying declaration clearly
· implicate the Petitioners, the submission of the appellant that the PSI was
waiting to rope in incorrect accused and was in search of their names cannot D
be countenanced. [51-G-H; 52-B, C, D; 53-B-C)

- 2. The dying declaration had involved Accused 1 and 2 in the fatal assault.
on deceased amongst others. The dying declaration had not only mentioned a
limited number of persons who had attacked him but had also clearly involved
other persons who were accomplices of the named accused, who all came in a
E

group and mounted assault on him. Consequently, non-mentioning of names
of remaining accused by the deceased in his dying declaration pales into
insignificance. [53-F-G]

3. The observations of the High Court that looking to the injuries F
received by the surviving victims as well as on the person of the deceased, the
case of weapons as put forth by the prosecution is made out are fully borne
out from the eyewitness account as seen in the light of the medical evidence.
The injuries suffered by the eyewitnesses as noted by the medical evidence
could very well have been caused by sharp cutting instruments like axe and G
gupti. It cannot be said that the medical evidence does not support the
prosecution case. [5~-B, D]

4. Evidence of witnesses 'B' and 'K' cannot be treated to be totally non-est
due to absence of identification parade. The said evidence may be treated to be

... one of a weak nature but cannot be said to totally irrelevant or inadmissible. H
c

44 SUPREME COURT REPORTS (1999) SUPP. 5 S.C.R.

A The fact remains that the two eyewitnesses were seriously injured and could
have easily seen the faces of the persons assaulting them and their appearance
and identity would well remain imprinted in their minds especially when they
were assaulted in broad day light. They could not be said to be interested in
roping· in innocent persons by shielding the real accused who had assaul£ed
B them. (54-G; 56-D-E)

Rajesh GovindJagesha & Ors. v. State ofMsharashtra, JT (1999) 9 SC
1; State ofHimachal Pradesh v. Lekh Raj & Anr., JT (1999) 9 SC 43; Mohan/al
Gangani v. State ofMaharashtra, AIR (1982) SC 839 and State (Delhi Admn.)
v. V.C. Shukla and Anr., AIR (1980) SC 1382, referred to.
c
5. There is direct eyewitness account deposed by the elder brother of
the deceased, P.W.5 the tenant and the younger brother of the deceased. These
witnesses have clearly deposed that they knew the accused. That part of the
evidence of these eyewitnesses had remained well sustained on record. The
accused mounted an assault on the wife of the deceased in her bedroom and
,. D even though she might not be knowing the accused earlier, the faces of the
accused mounting such an assault and which caused fatal injuries to her
husband can easily by treated to have been imprinted in her mind and when
she could identify these accused in the Court even in the absence of
identification parade, it could not be said that her deposition was unnatural
E or she was trying to falsely rope in the present accused by shielding the real
assaulters on her husband. [56-F, G, H; 57-A]

6. It is not unnatural for a young boy on a holiday to stand hear the pan
galla. It was he who detected Accused Nos. 3, 4 and 6 who came on motorcycle
, and who were followed by their other accomplices forming part and parcel of
F the unlawful assembly. They were all armed with deadly weapons. This witness
cannot be said to be a chance witness as he was staying in the same house in
which the deceased was stayi'ng. His presence was, therefore, most natural.
As he was involved in quarrel with Accused No. 1 and his group on the earlier
day, he could easily identify them and could visualise that they had come to
G mount an assault on them. [57-B, C]

7. The accused, as the eyewitness account shows, first rushed in a group
to the Press belonging to 'N', who was involved in the incident of earlier day,
and there they assaulted 'B' and in the process also 'K' and them rushed into
the house of the deceased. Therefore, they might have failed to witness the
H younger brother but that does not mean that his eyewitness account should be
RAMAN BHAI NARAN BHAI PATEL v. STATE [S.B. MAJMUDAR, J.] 45

treated to be connected one especially when he fully knew the accused and their A
intention as he had a quarrel with them only on the earlier day. [57-E-F)
8. The submission of Appellants that PW5 was a chance witness, cannot

- be countenanced as the evidence on record shows that he was a tenant of a
building situated in the near vicinity and he was staying in the locality since
number of years. He had no reason to falsely implicate the accused nor was
he interested in any of the prosecution witnesses. He knew the accused as
B

deposed to by him and that part of the evidence has stood the test of
cross-examination. [57-G)
9. The version of elder brother of the deceased, a practising Advocate
is quite natural. This witness also had deposed that he had known the accused
since long. Consequently, ever leaving aside the eyewitness account of 'N' C
and the injured witnesses 'B' and 'K' as there was no identification parade of
the accused que them, the eyewitness accounts of the PW5 and two brothers
of the deceased, clearly rope in the accused in the crime as they were well
known to them. The reliance placed on this evidence to bring home the charges
to the accused is correct. [58-A-B) D
10. The Accused 1 and 2 are clearly mentioned in tl\,e dying declaration.
They are said to have assaulted the deceased and inflicted several injuries
which ultimately killed him. That part of the dying declaration is fully
supported by the eyewitness account who had seen these accused in the
company of accused 3,4 and 6 and who had, on the date of the incident, being E
armed with deadly weapons and having formed an unlawful assembly had
committed the crime in question. The prosecution had fully established its
case against the appellants accused 1-4 and 6. [58-C-D)

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 581
of 1994. F
From the Judgment and Order dated 2.3.94 of the Gujarat High Court
in Crl. A. No. 121of1989.

N.N. Keshwani, for the Appellants.

K.G. Shah and S.K. Sabharwal, (Ms. Alka Agrawal,) for Mis. l.M. G
Nanavati Associates for the Respondent.

The Judgment of the Court was delivered by

S.B. MAJMUDAR, J. The appellants in this appeal, on grant of special
leave under Article 136 of the Constitution of India, are original Accused Nos. H
46 SUPREME COURT REPORTS (1999) SUPP. 5 S.C.R.

A I to 4 and 6 who were convicted for the offences under Sections 302, ,307,
326, 324, 323, 342, 452 read with Section 149 of the Indian Penal Code and were
sentenced to suffer rigorous imprisonment for life by the Additional Sessions
Judge, Surat. The said decision was upheld by the High Court in criminal

B
appeal, which has resulted in the present appeal.

In all there were eight accused sent up for trial before the learned
-
Sessions Judge. The Sessions Court, however, acquitted Accused Nos. 5,7
and 8. Appeal against their acqui~al came to be dismissed by the High Court
by the very same Judgment. Their Acquittal has not been further challenged
before us by the State of Gujrat. Hence, in this appeal, we are concerned with
C the conviction and sentence of only the present appellants i.e. Accused Nos.
1 to 4 and 6. For the sake of convenience in the later part of the Judgment,
we will refer to the appellants as Accused Nos. 1, 2, 3, 4, and 6 while
considering their respective roles in the incident in question.

BACKGROUND FACTS
D
The prosecution case in short is that an incident occurred on 25. 12.
1987 at 9 .30 A.M. in Varachha~ toad area of the City of Surat in the State of
Gujrat. It is the case of the prose~ution that the present appellants and three
others, who, as aforesaid, wer.e acquitted, being in all eight accused, along
with five to six other persons: came on motorcycles and scooters armed with
E weapons like knife, gupti, hockey stick etc. That in the first place Accused
Nos. 3,4 and 6 came on a motorcycle to the premises known as 'Satyam Press'
where one Nitin, the brother of the deceased Ramanbhai Mohanbhai was
standing and inside the Press one of its worker by name Bhogilal Ranchhod!Jhai
was present. Accused No. 4 had a gupti and he chased Nitin for about 30
F to 40 paces and as Nitin managed to escape, Accused No. 4 came back to
the press. In the mean time, Accused Nos. 3 and 6 were alleged to have
climbed the steps and entered the Press and had started belabouring Bhogilal
Ranchhodbahi and at the same time dragged him in. Accused No. 4, on return,
joined them and all the three used their respective weapons and seriously
G injured Bhogilal Ranchhodbai. Thereafter, they came out, but by then, Accused
Nos. 1 and 2 had also come on the scene. Accused No. I was armed with a
hockey stick and Accused No. 2 had an axe with him. At the time when the
Press incident was in progress, two events took place in quick succession.
One was the intervention of a pan-stall holder Karsanbhai Vallabbhai, when
he started going towards the press and tried to reason out with the assailants
H of Bhogilal Ranchhodbhai saying that the latter was a mere labourer or a
RAMAN BHAI NARAN BHAI PATEL v. STATE [S.B. MAJMUDAR, J.) 47

worker in the Press and he should not be harmed in any manner. Being A
enraged by this intervention, Accused Nos, l and 2 pounced upon Karsanbhai
Vallabbhai with their weapons and caused him injuries. The second event is

- that by this very time deceased Ramanbhai Mohanbhai came out of his
residence, which is quit nearby. Ramanbhai happens to be the elder brother
of Nitinbhai, the owner of the press, and Ramanbhai was interrupted by
Accused Nos. l and 2. Accused No.I is said to have given blows.with the B
hockey stick to Ramanbhai and thereafter Ramanbhai turned back and rushed
into his house to get shelter. Accused Nos. 3, 4 and 6 thereupon followed
Ramanbahi Mohanbhai inside his house. He was inflicted fatal blows by these
persons in his bedroom. Ramanbhai Mohanbahi's wife Niruban was an
eyewitness to this assault on her husband. C
It is the further case of the prosecution that at the time when the first
part of the incident relating to press took place and when Karsanbhai
Vallabbhai was injured, one more brother of Ramanbhai Mohanbhai i.e.
Dhirubhai Mohanbhai, who was sitting on the stone platform near his house
which is in near vicinity. also witnessed this incident. He is a practising lawyer D
and elder brother of Ramanbhai Mohanbahi. By the time aforesaid brother of
Ramanbhai Mohanbhai, who was in his household dress of a lungi and a
banian went inside to change his clothes the incident relating to the deceased
Ramanbhai Mohanbhai occurred. When Dhirubhai Mohanbhai came out of
his house, he was given an axe blow by the Accused No. 2 and as a result, E
he also turned back when the Accused No. I gave a blow with hockey stick
on his back. At that time, witness Dhirubhai Mohanbhai is said to have seen
Accused Nos. 3 to 6 coming out of the room of the deceased Ramanbhai
Mohanbhai. Dhirubhai Mohanbhai, thereafter is said to have gone inside the
room of his brother Ramanbhai Mohanbhai and found him to be critically
injured. In that room, he also found Niruben, wife ofRamanbhai Mohanbhai F
and also wife of the elder brother ofDhirubhai named Ninnalaben. Dhirubhai

- helped these two women in fixing temporary bandage and Ramanbhai
Mohanbhai was shifted to the hospital, so were the injured witnesses Bhogilal
Ranchhodbhai and Karsanbhai Vallabhbhai.

It is the case of the prosecution that all these accused, who had formed
G
an unlawful assembly with a common object of thrashing the victims, inflicted
serious injuries on four persons, Namely, Ramanbahi Mohanbhai, Bhogilal
Ranchhodbhai, Karsanbliai Vallabhvhai and Dhirubhai Mohanbhai. Out of
these injured persons, Ramanbhai Mohanbhai died at the hospital on the
same day at about 4.00 to 4.30 P.M. and the remaining persons survived and H
48 SUPREME COURT REPORTS [1999) SUPP. 5 S.C.R.

A they were. examined as injured eye witnesses during the trial.

The prosecution alleged as a background of this case and also its
motive leading to the assault, an incident that took place on the previous day
i.e. on 24.12.1987: On that day witness Dilipbhai Mohanbhai, one more brother
B of the ~eceased Ramanbhai Mohanbhai is said to have a quarrel with the
Accused No. I when both of them were studying in the same school. That
quarrel resulted in loss of temper between Accused No. I and his friends on
the one hand and Dilipbh_ai Mohanbhai and his brother Nitinbhai and others
on the other. That quarrel was in connection with some school goods and
other related matters. On 24.12.1987, while Dilipbhai Mohanbhai has gone to
C a nearby medical store with his friends, Accused No. I and his friends accosted
him and picked up quarrel. A~ the house ofDilipbhai was near, his friend Atul
went to his house and called Dilipbhai's brothers Nitinbhai and Kiranbhai who
in the process, slapped Accused No. I. That the said dispute between the two
warring groups is said to have been temporarily settled in the same evening
of24.12. l 987, and the incident in question, according to the prosecution, was
D as a result of the aforesaid simmering dispute between the parties.

Further case of the prosecution was that a telephonic message was
received in the morning of the incident by about 9.45 A.M. at Varachha Road
Police Station and P.SI Shri Parmer with other constables ru!ihed on the spot
E and removed the crowd which ha~ gathered there and arranged for Immediate
removal of the injured to the hospital. Thereafter, when the injured Ramanbhai
Mohanbhai was available for being interrogated after he underwent preliminary
treatment in the hospital, Shri Parmar recorded his statement as FIR between
12.30 and 1.00 P.M. which had subsequently been treated as dying declaration
as Ramanbhai succumbed to injuries in. the afternoon of the day of the
F incident. After the registration of the said complaint of Ramanbhai, investigation
was proceeded further. Inquest Panchnama and Panchnama of the scene of
the offence were made. The statement of the witnesses were recorded partly
.. in the evening of25.12.1987 and partly on the next day morning when the
statement of the witness Dilipbhai Mohanbhai was recorded. On the basis of
G the statements of the witnesses so recorded the accused were arrested and
taken into judicial custo4y. After completion of the investigation, charge-
sheet against all the Accused Nos. I to 8 were submitted and after committal
enquiry they stood their trial for the offences with which t~ey were charged
before the Sessions- Court, Surat. As noted earlier, the ·learned ·sessions
Judge, after recording the evidence offered by the prosecution and after
H hearing the version of the defence, convicted the present appellants-Accused . ..,..
RAMAN BHAI NARAN BHAI PATEL v. STATE [S.B. MAJMUDAR, J.] 49

Nos. l to 4 and 6 and sentenced them as aforesaid and acquitted the remaining A
three Accused Nos. 5,7 and 8. In their appeal, as noted earlier, Accused Nos.
l to 4 and 6 failed to convince the High Court and that is how they are before
us in the present proceeding.

Now before dealing with the main contentions canvassed by learned
counsel for the appellants Shri Keshwanti, it is necessary to keep in view the B
limited scope of the present proceeding. As this appeal arises under Article
136 of the Constitution of India, judgment of the Sessions Court as well as
the High Court wherein concurrent finding of fact had been reached by both
the Courts on appreciation of evidence of the injured eyewitnesses as well
as other eyewitnesses, cannot be assailed by making an effort to get the C
entire evidence re-appreciated as if this is a third appeal on facts. So far as
the jurisdiction of this Court under Article 136 in criminal appeals arising from
judgment of the Sessions Court and the High Court concurrently finding the
guilt of the accused on the relevant evidence appreciated by them is concerned,
a three Judge Bench of this Court in the case of Ramniklal Gukaldas Oza D
v. The State of Gujrat, AIR (1975) SC 1752, speaking through Bhagwati J. as
he then was, made the following pertinent observation in para 3 of the Report,
as under:

"It is a wholesale rule evolved, by this Court, Which has been
consistently followed, that in a criminal case, while hearing an appeal E
by special leave, this Court should not ordinarily embark upon a
reappreciation of the evidence, when both the Sessions Court and the
High Court have agreed in their appreciation of the evidence and
arrived at concurrent findings of fact. It must be remembered that this
Court is not a regular Court of appeal which an accused may approach F
as of right in criminal cases. It is an extraordinary jurisdiction which
this Court.exercises when it entertains an appeal by special leave and
this jurisdiction, by its very nature, is exercisable only when this
Court is satisfied that it is necessary to interfere in order to prevent
grave or serious mismarriage of justice. Mere errors in appreciation of
the evidence are not enough to attract this invigilatory jurisdiction. Or G
else, this Court would be conv.erted into a regular Court of appeal
where every judgment of the High Court in a criminal case would be
liable to be scrutinised for its correctness. That is not the functicin of
this Court."

In the same volume at page 1960 in the case of Duli Chand v. Delhi H
50 SUPREME COURT REPORTS [1999] SUPP. 5 S.C.R.

A Administration, another three Judge Bench of this Court, again speaking
through Bhagwati J., in para 5 of the Report laid down as under:

"xx xx xxx xxx
We have had occasion to say before and we may emphasise it once
B again, that this Court is not a regular Court of Appeal to which every
judgment of the High Court in criminal case may be brought up for
scrutinising its correctness. It is not the practice of this Court to re-
appreciate the evidence for the purpose of examining whether the
finding of fact concurrently arrived at by the High Court and the
subordinate courts is correct or not. It is only in rare and exceptional
c cases where there is some manifest illegality or grave and serious
miscarriage of justice that this Court would interfere with such finding
of fact.

xxxx xxx xxxx"
D In view of the aforesaid settled legal position, therefore, we have to see
whether the findings of fact reached by the High Court agreeing with the
appreciation of evidence by the Sessions Court suffer from any patent error
of law or have resulted in miscarriage of justice which can call for our
interference in this appeal.
E We may, in this connection, note that the prosecution examined six
eyewitnesses before the Trial Court out of which three were injured
eyewitnesses, namely, Bhogillal Ranchhobhai, P.W.2. Karsanbhai Vallabhbhai,
P. W. 14 and Dhirubhai Mohanbhai (brother. of the deceased). Apart fro.m the
aforesaid three injured eyewitnesses, the prosecution also examined Niruben,
F wife/widow of Ramanbhai, the deceased, Dhirubhai Premjibhai, P.W.5, the
tenant of Shivkrupa building, who is said to have witnessed the incident
being a resident of the same locality and Dilipbhai, the younger brother of
the deceased. In addition thereto, the Trial Court relied upon the dying
declaration-Exhibit 75 and on a consideration of the totality of the aforesaid
evidence, conviction and sentences were rendered against the accused
G appellants. The High Court, in its tum, reappreciated and reconsidered the
entire evidence furnished by the prosecution and concurred with the findings
of fact reached by the Trial Court and having found the evidence of the
witnesses quite reliable, held that the prosecution has fully brought home the
charge against the appellants.
H We have also carefully considered the impugned judgment of the High
RAMAN BHAI NARAN BHAI PATEL v. STATE [S.B. MAJMUDAR, J.] 51

Court and have found that the conclusion to which the High Court reached A
against the appellants is well sustained on evidence on record and calls for
no interference. It could not be demonstrated by learned counsel for the
appellants that the concurrent findings of fact reached by the Sessions Court
and the High Court on prosecution evidence suffered from any manifest
illegality or perversity or had resulted into any grave failure of justice. Once B
this conclusion is reached, the appeal would be liable to fail.
However, it will be appropriate for us to briefly deal with the main
contentions canvassed by learned counsel for the appeJlants for ·Our
consideration. He submitted the following five points for our consideration:-
}. There are suspicious features in the case which throw doubt on C
the bonafides of police investigation. Therefore, it cannot be
said that the prosecution has proved the case beyond reasonable
doubt.
2 The police did not record the names of the accused at the
earliest opportunity, but they waited and deliberated as to who D
should be included in the net of the accused.
3. FIR does not disclose the names of all the accused.
4. Medical evidence does not support the prosecution case.
5. The question is as to who are the accused when the eyewitnesses E
do not know the accused alleged to have participated in. the /
offence.
We have heard learned counsel for the appellants as well as learned
senior counsel for the respondent-State of Gujrat in connection with these
points. We, therefore, deal with them seriatim. F
POINT NOS. I & 2:

\ So far as these two points are concerned,. learned counsel for the
appellants vehemently submitted placing reliance on some observations found
in the judgment of the High Court that PSI Shri Parmar did not carry out his G
investigation in a proper manner and left many things to be desired and,
therefore, the investigation was not a bonafide one. He contended that when
Shri Parmar went on spot in the morning after the incident took place and
when he saw three injured persons on spot, there was no reason why he
should not have enquired about the accused who might have committed this
crime and there was no reason why statements of available witnesses in this H
52 SUPREME COURT REPORTS [1999) SUPP. 5 S.C.R.

A connection should not have been recorded then and there. Instead the injured
were removed to the hospital and the FIR was recorded as late as at 12.30 •'
P.M. which ultimately became a dying declaration i.e. Exhibit-75. This showed
that he was waiting for being supplied the names of the accused with a view
to anyhow rope them· in. It is difficult to appreciate this contention. The
B reason is obvious. According to the prosecution case and as supported by
eyewitnesses account, a group of persons armed with deadly weapons came
-·
in by speeding vehicle like scooter and bullet motorcycles in batches and
mounted an assault in broad day light near the Press as well as in the house
of deceased Rimanbhai Mohanbhai and also in the near vicinity thereof
resulting in serious injuries by sharp cutting instru~ents to eyewitnesses
C Bhogilal Ranchhodbhai, P.W. 2 Karsanbhai Vallabhbhai, P.W. 14, and Dhirubhai
Mohanbhai (brother of the deceased). The injuries suffered by Bhogilal
Ranchhodbhai were apparently of a very serious nature as his intestines had
come out, as noted by the doctor who treated him, and a piece of his intestine
was even found lying on the spot and was blood shed all round. In such a
-·
situation the anxiety of PSI Shri Parmar to first remove the injuried to the
D hospital to save their lives instead of going into the merticulous details by
way of interrogating the persons standing nearby for finding out the cause
of the assault, cannot be said to be unnatural or uncalled for. It is in the
evidence of PSI Shri Parmar that the moment he got an opportunitY in the
hospital to record the statement of Ramanbhai Mohanbhai, he recorded the
E ,same at about 12.30 P.M. because prior thereto the doctor attending upon the
injured had not permitted him to interrogate the injured and that the injured
Bhogilal Ranchhodbhai was unconscious. While the injured Ramanbhai
Mohanbhai was also being given preliminary treatment and only when he was
removed to the ward that PSI Shri Parmar got an opportunity to interrogate
him and immediately recorded his statement as an FIR which subsequently,.
F as noted earlier, has become a dying declaration i.e. Exhibit-75. The evidence
of Shri Parmar further shows that thereafter he started investigation, went 9n
spot, made Panchnama of three places of offence i.e. the press, the' house of
Ramanbhai Mohanbhai and also in the vicinity and when in the meantime the
injured Ramanbhai Mochanbhai died at 4.00 P.M. In the hospital recording the
G case of murder, the inquest Panchnama was made and thereafter in the evening
statements of witnesses were recorded. Under tl}ese circumstances, it is
difficult to appreciate how it can be alleged that the police .investigation was
not a bona fide one. It is, of course, true that the High Court, as noted in
the impugned judgment, has observed that PSI Shri Parmar had miserably
failed to come up to an ideal standard of investigation. But, in our view, the
H · said observation is not fully justified. It may be that Sliri Parmar could have
RAMAN BHAl NARAN BHAl PATEL v. STATE [S.B. MAJMUDAR, J.] 53

acted more promptly but that would not mean that he was guilty of any A
...... malajide intentions. Learned counsel for the appellants also heavily relied
upon the observations of the High Court in para 30 of the judgment that the
cross-examination of the witnesses and more particularly of Dhirubhai
Mohanbhai, as also the. cross-examination of the two police officer Shri
Parmar and Shri Buch, bring out enough material to show that some efforts
were being made influence the investigation. These observations, however, B
cannot help the learned counsel for the appellants for the simple reason that
the High Court itself notes that these efforts had failed. Once the injured
eyewitnesses and other eyewitnesses have been found to be reliable and
especially when the dying declaration Exhibit-75 clearly implicate Accused
No. l, 2 and other person, it is not possible to countenance the submission c
of learned counsel for the appellants that PSI Shri Parmar was waiting to rope
in innocent accused and was in search of their names. The submissions in
support of these two points, therefore, are not of any avail to learned counsel
for the appellants.

POINT NO. 3: D
It is true that the FIR, based on dying declaration Exhibit-75, does not
disclose the names of all the accused. However, a mere look at the said dying
declaration shows that the deceased Ramanbhai Mohanbhai clearly stated
that he was assaulted by deadly weapons by Accused Nos. l and 2, amongst
others, of course, he mentioned the names of Accused No. 5 Kiranbhai E
Ghanshyam~hai Patel and one another Ghanshyambhai who assaulted him.
But Accused No. 5-Kiranbhai Ghanshyambhai Patel was already acquitted
which Ghanshyambhai was not charge-sheeted. However, in the same
statement, he also mentioned that there was an assembly of 15 to 17 persons.
Consequently, the dying declaration can certainly be held to have involved F
Accused Nos. l and 2 in the fatal assault on deceased Ramanbhai Mohanbhai,
amongst others. Thus it has to be kept in view that the said dying declaration
had not only mentioned a limited number of persons who had attacked him
=· but had also clearly involved other persons who were accomplice of the
named accused, who all came in a group and mounted assault on him.
Consequently, non-mentioning of names of remaining accused by Ramanbhai G
Mohanbhai in his dying declaration pales into insignificance. That disposes
of Point No. 3

POINT NO. 4:

H

-
So far as the medical evidence is concerned, the High Court has observed
54 SUPREME COURT REPORTS (1999] SUPP. 5 S.C.R.

A in para 13 of the judgment that looking to the injuries received by the
surviving victims as well as on the person of the deceased, the case of
weapons as put-forth by the prosecution is certainly made out. No doubt,
0
there is references to presence of spear and dharia, which has not been
ultimately spoken to by any of the witnesses as having been used, but when
B gupti is used, according to prosecution, stab wounds of a particular dimension
can certainly be correlated with it as would be the case with the use of knife.
Axe blows are also clearly made out from the point of view of medical
evidence. These observations of the High Court, while considering the medical
evidence, are fully borne out from the eyewitness account as seen in th.e light
of the medical evidence. It has to be kept in view that this is a case in which
C assault was mounted by large number of persons forming an unlawful assembly
and they were armed with different types of weapons even though injuries
suffered by the victims might have been caused by gupti or axe or hockey ·
stick. It is easy to visualise that other persons who were forming part of the
same group might have been armed with spear or dharia but as they are
acquitted, nothing more can be said about the same. However, it must be held
D that the injuries suffered by the eyewitnesses as noted by the medical evidence
could very well have been caused by sharp cutting instruments like axe and
gupti. It, therefore, cannot be said that the medical evidence does not support
the prosecution case. This point, therefore, also is not well sustained on
evidence on record.
E
POINT NO. 5:

So far this point is concerned, we have gone through the relevant
evidence on record; as rioted by the Trial Court as well as by the High Court.
It is true that ~e injured eyewitnesses Bhogilal Ranchhodbhai-P.W.2 and
·F Karsanbhai Vallabhbhai-P.W.14 tried to identify the accused only in the Court
and they were not knowing them earlier. Another witness Niruben also did not
. know them earl~er as deposed to by her. It is equally true that the identification
parade was not held but that would not mean that the witnesses who suffered
grievous injuries were out to rope in wrong accused leaving out real culprits.
G So far as witnesses Bhogilal Ranchhodbhai and Karsanbhai Vallabhbhai are
concerned,' their evidence cannot be treated to be totally non est due to
absence of identification parade. The said evidence may be treated to be one
of a weak nature but cannot be said to be totally irrelevant or inadmissible. In .
this connection, we may refer to recent decision of this Court in the
••
case of Rajesh Govind Jagesha and Ors. v. State of Maharashtra, JT,
H [1999] 9 SC I and in the case of State of Himachal Pradesh v. Leich Raj and
- RAMAN BHAI NARAN BHAI PATEL v. STATE [S.B. MAJMUDAR, J.) 55

Anr. JT, [1999] 9 SC 43 wherein it has been observed as under:

"xx xx xx xx xx xx
A

The evidence of identifying the accused person at the trial for the first
time is, from its very nature, inherently of a weak character. Identification
proceedings are used for corroboration purposes for believing that B
the person brought before the court was the real person involved in
the commission of the crime. The identification parade even if held,
cannot, in all cases, be considered as safe, sole and trustworthy
evidence on which the conviction of the accused could be sustained.
It is a rule. of prudence which is required to be followed in cases where
accused is not known to the witness or the complainant. C
xx xx xxxx xxxx"
In this connection, learned counsel for the appellants vehemently relied
. upon a decision of a three Judge Bench of this Court in the case of Mohan/al
Gangaram Gehani v. State of Maharashtra, AIR [1982] SC 839 wherein Fazal D
All, J., speaking for the Bench in para 25 of the Report, made the following
observations:

" ... P.W.3 (Sheikh) admits at page 22 of the paper book that he had
not seen the accused or any of the three accused before the date of
the incident and that he had seen all the three for the first time at the E
time of the incident. He further admits that the names of tne accused
were given to him by the police. In these circumstances, therefore, if
the appellant was not known to him before the incident and was
identified for the first time in the Court, in the absence of a test
identification parade the evidence of P.W.3 was.valueless and could F
not be relied upon ...

xx xx xxxx xxxx''

It becomes at once clear that the aforesaid observations were made in
the light of the peculiar facts and circumstances wherein the police is said to G
have given the names of the accused to the witnesses. Under these
circumstances, identification of such a named accused only in the Court when
the accused was not known earlier to the witness had to be treated as
valueless. The said decision, in tum, relied upon an earlier decision of this
Court in the case of State (Delhi Admn.) v. V C. Shukla and another etc., AIR
[1980] SC 1382 wherein also Fazal Ali J., speaking for a three Judge Bench H
.·
56 SUPREME COURT REPORTS [1999] SUPP. 5 S.C.R.

A made similar observations in this regard. In that case the evidence of the
witness in the Court and his identifying the accused only in the Court without
previous identification parade was found to be a valueless exercise. The
observations made therein were confined to the nature of the evidence deposed
to by the said eyewitnesses .. It, therefore, cannot be held, as tried to be
submitted by learned counsel for the appellants, that in the absence of test
B identification parade, the evidence of eyewitness identifying the accused
would become inadmissible or totally useless whether the evidence deserves
-any creder\ce or not would always depend on the facts and circumstances of
each case. It is, of course, true as submitted by learned counsel for the
appellants that the .later decisions of this Court in the case of Rajesh Govind
C Jagesha and Ors. v. State of Maharashtra and State of Himachal Pradesh
v. Leich Raj and Anr., (supra) had not considered the aforesaid three Judge
Bench decisions of this Court. However, in our view, the ratio of the aforesaid
later decisions of this Court cannot be said to be running counter to what
is decided by the earlier three Judge Bench judgment on the facts and
circumstances examined by the Court while rendering these decisions. But
D even assuming as submitted by learned counsel for the appellants that the
evidence of these two injured witnesses i.e. Bhogilal Ranchhodbhai and
Karsanbhai Vallabhbhai identifying the accused in the Court may be treated.
to be of no assistance to the prosecution, the fact remains that these
eyewitnesses were seriously injured and they could have easily seen the
E faces of the persons assaulting them and their appearance and identity would
well remain imprinted in their minds especially when they were assaulted in
broad day light. They could not be said to be interested in roping in innocent ·
persons by shielding the real accused who had assaulted them.

But even that apart, there is direct eyewitness account deposed to by
F the witness Dhirubhai Mohanbhai (brother of the deceased), witness Dhirubhai
Premjibhai P.W.5, the tenant residing in the locality and Dilipbhai, the younger
brother of the deceased. These witnesses have clearly deposed that .they
knew the accused. In fact, Dilipbhai was the person who was involved in the
incident of the previous day wherein Accused No. I and his accomplices had
G a quarrel with him and his supporters. That part of the evidence of these
eyewitnesses had remained well sustained on record. So far as witness Niruben
was concerned, she is the wife of the deceased Ramanbahi Mohanbhai. The
accused mounted an assault on her husband in her bedroom and even though
she might not be knowing the accused earlier, the faces of the accused
mounting such an assault and which caused fatal injuries to her husband can
H easily be treated to have been imprinted in her mind and when she could
RAMAN BHAI NARAN BHAI PATEL v. STATE [S.B. MAJMUDAR, J.] 57

identify these accused in the Court even in the absence of identification A
p\rade, it could not be said that her deposition was unnatural or she was
irying to falsely rope in "the present accused by shielding the real assaulters
on her husband.

In this connection, we may also consider one grievance put forward by
learned counsel for the appe~lants. So far as the evidence of witness Dilipbhai B
Mohanbhai is concerned, he submitted that on a holiday like 25.12.1987, this
witness who was aged 19 years, had no occasion to stand near the pan galla
and witness the incident and that he was a chance witness. It is difficult to
appreciate this contention. It is not unnatural for a young boy like Dilipbhai
Mohanbhai on a holiday to stand near the pan galla. It was he who detected C
Accused Nos. 3, 4 and 6 who come on motorcycle and who were followed
by their other accomplices forming part and parcel of the unlawful assembly.
They were all armed with deadly weapons. This witness cannot be said to be
a chance witness as he was staying in the same house in which Ramanbhai
Mohanbhai was staying. His presence was, therefore, most natural. As he
was involved in quarrel with Accused No. I and his group on the earlier day, D
he could easily identify them and could visualise that they had come to mount
an assault on them. Learned counsel for the appellants then submitted that
if that was so the accused woule!l have first assaulted Dilipbhai Mohanbhai
instead of assaulting the witnesses Bhogilal Ranchhodbhai and Karsanbhai
or for that matter deceased Ramanbhai Mohanbhai. The High Court has given E
a cogent reason for repelling this contention. The accused, as the eyewitness
account shows, first rushed in a group to the Press belonging to Nitinbhai,
who was involved in the incident of earlier day, and there they assaulted
Bhogilal Ranchhodbhai and in the process also Karsanbhai Vallabhbhai and
then rushed into the house of Ramanbhai. Therefore, they might have failed
to witness Dilipbhai but that does not mean that the eyewitness account of F
Dilipbhai should be treated to be a concocted one especially when he fully
knew the accused and their intentions as he had a quarrel with them only on
the earlier day.

Similarly, the submission of learned counsel for the appellants that G
witness Dhirubhai Premjibhai-P.W.5, was a chance witness, also cannot be
countemanced as the evidence on record shows that he was a tenant of
Shivkrupa building situated in the near vicinity and he was staying in the
locality since number of years. He had no reason to falsely implicate the
accused nor was he interested in any of the prosecution witnesses. He knew
the accused as deposed to by him and that part of the evidence has stood H
58 SUPREME COURT REPORTS [1999] SUPP. 5 S.C.R.

A the test of cross-examination. Consequently, this witness cannot be said to
be a chance witness as contended by learned counsel for the appellants. So
far as the witness Dhirubhai, brother of the deceased is concerned, he was
a practising advocate and he was staying in the nearby house. His version
was quite natural that he rushed on spot and saw th.e assault by the accused
B on the victims and tried to help the injured Ramanbhai Mohanbhai being
carried to the hospital. This witness also had deposed that he had known the ...
accused since long. Consequently, even leaving aside the eyewitness account
of Niruben and the injured witnesses Bhogilal Ranchhodbhai and Karsanbhai
.Vallabhbhai as there was no identification parade of the accused qua them,
the eyewitness account of Dhirubhai Mohanbhai, Dhirubhai Premjibhai and
C Dilipbhai clearly rope in the accused in the crime as they were well known
ta them. Both the Court's below have, therefore, rightly placed reliance on this
evidence to bring home the charges to the accused. The net result of this
discussion is that Accused Nos. I and 2 are clearly mentioned in the dying
declaration Exhibit-75. They are said to have assaulted the deceased and
inflicted severe injuries, which ultimately killed him. That part of the dying
D declaration is fully supported by the eyewitness account of witnesses
Dhirubhai Mohanbhai, Dhirubhai Premjibhai and Dilipbhai who had seen
these accused in the company of Accused Nos. 3, 4 and 6 and who had, on
the date of the incident, being anned witli deadly weapons and having fonned
an unlawful assembly had committed the crime in question. It must, therefore,
E be held that the prosecution had fully established its case against Accused
Nos. I, 2, 3, 4 and 6. Their appeal was rightly dismissed by the High Court.
In the result, the appeal before us also fails and stands dismissed.

VM Appeal dismissed.

..