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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1179 OF 2012

NARENDRASINH KESHUBHAI ZALA … APPELLANT

VERSUS

STATE OF GUJARAT … RESPONDENT

JUDGEMENT
SANJAY KAROL, J.

1. Vide a judgment dated 19.07.2003 passed by the Ld. Addl.

Sessions Judge, Fast Track Court at Surendranagar,

Gujarat in Sessions Case No. 27 of 2002, the appellant

Narendrasinh Keshubha Zala stood convicted for having

committed offences under Section 302, Indian Penal Code

read with Section 34, Indian Penal Code as also under

Section 25 (1) A and Section 27 (2) of the Arms Act. In

relation to the offence under Section 302, Indian Penal

Code, he is sentenced to suffer imprisonment for life and

Signature Not Verified

Digitally signed by

pay fine of Rs. 500 and in default thereof, an additional

Narendra Prasad
Date: 2023.03.17
16:35:11 IST
Reason:
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sentence for one month. The same stands affirmed by the

High Court vide impugned judgment.

2. In brief, the case set up by the prosecution reads as follows:

on 14.1.2002 at around 2:30 AM police registered an FIR in

relation to the murder of a person namely, Ram. The

complaint was registered on the asking of Shri Mahipal K.

Jadeja (PW-1), father of the deceased in the night

intervening 13-14th of January, 2002. The Complaint

records the complainant to have stated that at around

11:00PM one person known as Munna Bhai alias Krupal

Rajnikant (PW-6) had come on a motorcycle to his residence

informing him of his son being critically injured and being

taken to MG Hospital in an autorickshaw. The Complainant

along with this person reached the hospital where he saw

the dead body of his son lying on a stretcher. There was a

cut on the left eyebrow and the right side of the neck

bleeding profusely. On inquiry he was informed by the

doctor that the victim had died as result of a fire shot injury.

Significantly, in the complaint recorded the same day at

around 02:15 AM he states that, his son had left the house
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for a walk after having dinner. Further, “… I have no

information as to how and who killed my son…” and that “…

his son had no animosity prompting anyone to kill…”.

3. With the registration of the FIR, investigation was conducted

by I.O. Manbha Bepasaheb Parmar, (PW - 20) which

revealed that on 13.1.2002 at around 9:30 PM, while the

deceased and Nirav Bipinbhai Patel (PW-3) were sitting on

the Nala near the Circuit House, accused Narendra and

Shailendra – pillion rider came on a motorcycle and after a

brief talk, accused Narendra Zala (Appellant herein) shot

dead the deceased with a gun, which was discovered

pursuant to his disclosure statement. With the completion

of investigation, challan was presented in the court for trial

only against accused Narendra Zala.

4. The Ld. Trial Court convicted the accused on the ground

that the incident was witnessed by Nirav Bipinbhai Patel

(PW-3), whose testimony, being the sole eye-witness was

trustworthy and reliable to the extent that there was motive,

being money dispute which the deceased had to return to

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the Accused. The Police pursuant to Appellants disclosure

statement recovered the weapon of crime.

5. The High Court upheld the judgement of the Ld. Trial Court

on the ground that the prosecution story was reliable and

worthy of credence. Even on the absence of motive being

established, i.e. whether or not the deceased owed money to

the Appellant, the testimony of the sole eyewitness (PW-3),

worthy of credence, fully matched with the case of Murder

as set out by the prosecution.

6. We have heard learned counsels for both the parties at

length. Certain facts are not in dispute:

(A) The identity of the deceased and the death as result of a

gun shot injury; (B) The Post Mortem conducted by Dr.

Ravjibhai Makwana (PW - 5) who prepared the Post Mortem

Report (Ex. P.36) evidencing the fact that 60 metal pellets

were recovered from the muscular tissues of the neck of the

deceased; (C) The cause of death being haemorrhage on

account of injury on the right side of the neck pursuant to

the use of firearm; (D) The prosecution case rests on the

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testimony of material witnesses, i.e. PW-3 sole eyewitness,

who was the deceased’s friend and PW-1 who is father of the

deceased.

7. In the considered view of this Court this case primarily rests

solely upon the testimony of PW-3, which is full of

blemishes, absolutely uninspiring in confidence and the

witness not having deposed the truth.

8. It is a settled principle of law that doubt cannot replace

proof. Suspicion, howsoever great it may be, is no substitute

of proof in criminal jurisprudence [Jagga Singh v. State of

Punjab, 1994 Supp (3) SCC 463]. Only such evidence is

admissible and acceptable as is permissible in accordance

with law. In the case of a sole eye witness, the witness has

to be reliable, trustworthy, his testimony worthy of credence

and the case proven beyond reasonable doubt. Unnatural

conduct and unexplained circumstances can be a ground

for disbelieving the witness. This Court in the case of Anil

Phukan v. State of Assam, (1993) 3 SCC 282 has held

that:
“ 3. … So long as the single eyewitness is a wholly
reliable witness the courts have no difficulty in basing
conviction on his testimony alone. However, where the
single eyewitness is not found to be a wholly reliable
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witness, in the sense that there are some

circumstances which may show that he could have an
interest in the prosecution, then the courts generally
insist upon some independent corroboration of his
testimony, in material particulars, before recording
conviction. It is only when the courts find that the
single eyewitness is a wholly unreliable witness that
his testimony is discarded in toto and no amount of
corroboration can cure that defect…”

The same principle has been enunciated in: Amar Singh v.

State (NCT of Delhi), (2020) 19 SCC 165.

9. In the instant case when we examine the testimony of PW-3,

we notice him to have deposed that on the fateful night ie.

13.1.2002, around 11 PM both he and the deceased were

sitting on a Nala near the Circuit House in Surendranagar.

At that time, accused came on a motorcycle with Shailendra

as a pillion rider and after abusing, wanted Ram (deceased)

to state as to when he would return the money borrowed by

him. When the deceased stood up to answer, Narendra

pulled out a pistol and after placing it on the neck, said, “…

this would not take much time to finish you.” Thereafter,

accused fired the pistol. Resultantly, the deceased collapsed

on the ground and started bleeding profusely from the neck.

Immediately, Narendra Zala and Shailendra drove away

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towards the Sardar Society. PW-3 states that the incident

left him shocked and stunned. He was so scared that he ran

towards the society where he met his uncle Harshad

Veljibhai (PW-9) and his friend Manish Natvarlal Trivedi

(PW-8) whom he informed of the incident. Seeing his

condition, he was asked by his uncle to go home and sleep.

Next morning, he went to the house of Ram and narrated

the incident to his mother and sister Heenaba Pradipsinh

Zala (PW-2). Thereafter he went to the hospital and informed

Ram’s father (PW-1) of the incident. Police interrogated him

at different places and recorded his statement on the 14th of

January at around 4:30PM at the Police Headquarters.

Cross examination part of his testimony reveals this witness

to have repeatedly improvised his initial statement,

disclosed to the Police. Illustratively he had not informed the

Police of having disclosed the incident to the sister of the

deceased. He had also not disclosed to the Police that there

was exchange of words between Ram and Narendra

(Appellant herein) in relation to some money owed by the

deceased to the accused. This may not have any effect on

the veracity of his statement. But what makes his testimony

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shaky and the witness unbelievable is his admission of the

Police Headquarters being in close proximity to the place of

occurrence of the incident and despite knowing that police

is always posted at the gate he did not approach the police.

The explanation furnished is only that he was “much

scared”, which prudently is not acceptable, given that he

was a close friend of the Deceased.

Further, his credit stands impeached in the cross-

examination part of his testimony. The witness is an adult,

mature and worldly wise. He is aged 24 years and runs a

grocery shop. He is not illiterate, yet he chose to not take

any action, even to save the life of his friend. His

explanation that he went home and slept is uninspiring in

confidence for the incident took place in his presence and in

close proximity of habitation, more specifically at a short

distance i.e. just 3-4 minutes of walking distance from the

Police Headquarters where constables are posted around the

clock. He left his friend profusely bleeding on the spot but

did not seek any help and immediately did not report the

incident to the family members of the deceased whose

house he visited only the following day at around 8:00 –

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9:00AM. His conduct of going off to sleep, having seen his

friend being murdered right before his eyes and then not

visiting the hospital forthwith is quite unnatural. Also he

did not inform the incident to his parents. It was only when

the police interrogated him that he named the accused. His

testimony is not free from embellishments, nor is not

corroborated by any other evidence. Also, he admits not to

have any information of any monetary transactions between

the accused and the deceased.

10. This Court on multiple occasions has held that it is not the

quantity but the quality of witnesses and evidence that can

either make or break the case of the prosecution. It is the

duty of the prosecution to prove that the testimonies of the

witnesses that it seeks to rely upon are of sterling quality,

i.e. fully trustworthy and absolutely free from any kind of

blemish. [Prahlad v. State of M.P. (supra); Amrik Singh v.

State of Punjab, (2022) 9 SCC 402; Pramila v. State of

U.P., (2021) 12 SCC 550; Krishan Kumar Malik v. State

of Haryana, (2011) 7 SCC 130]

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11. Examining the testimony of an independent witness, Munna

bhai alias Krupal Rajnikant (PW-6), we find him to be the

one to have firstly informed the father of the deceased (PW-

1) of his son having sustained injuries and taken to MG

Hospital, in such a condition. As per his version, hearing

cries of some fight, he rushed to the spot and noticed the

deceased lying on the road bleeding profusely. On his

asking, one autorickshaw driver took him to the hospital on

the promise of paying the fare. Who is this person? Why he

himself did not take the deceased to the hospital? All this

remains unexplained. For after all, he knew him and had

informed the father of the deceased. Is it that he himself was

a suspect? Significantly, the witness admits not to have

heard the sound of the gun shot. He contradicts himself by

stating that he had informed the police of the incident only

on 15.05.2002. He does not identify the autorickshaw driver

and was not familiar with him. Significantly, the

autorickshaw driver has not been examined in the Court.

12. When we examine the testimony of the Complainant (PW-1)

we notice him to have deposed that around 11 PM, one

person namely Munna Bhai alias Krupal Rajnikant (PW-6)

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came on a motorcycle and informed that in a critically

injured condition, Ram, had been taken to MG Hospital in

an autorickshaw. Immediately, he reached the hospital and

got recorded his complaint with the police. It is the case of

this witness that Nirav (PW-3) met him in the hospital at

around 9:30AM and at that time informed him of the

incident. This witness does not corroborate the testimony of

Nirav (PW-3) of the disclosure of the incident either to his

wife or daughter (PW-2). Further, if the identity of the

accused was known both to the father (PW–1) and Nirav

(PW-3) then why is that the statement implicating the

accused was recorded only at 4:30PM in the evening? The

timing is significant, more so when Nirav (PW-3) himself was

interrogated by the Police at two different places, which

exercise continued till 6:30PM of the evening of 14.01.2002.

13. Coming to the testimony of Harshadbhai Veljibhai Patel (PW-

9), we notice him to have not supported the prosecution at

all and in the cross examination part of his testimony, we do

not find anything eliciting of the accused in the crime.

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14. We may observe that save and except for the confessional

statement of the accused, the Prosecution is not able to link

the weapon with the accused. There was no scientific

evidence, or the marks of his fingerprints, other

identification marks or any tell-tale signs of the blood found

on body of the deceased, linking it to the metal pellets of the

bullet fired from the weapon recovered during investigation.

15. This Court has consistently held in a catena of judgements

that it is the duty of the prosecution to establish use of the

weapon discovered in the commission of the crime. Failure

to do so may cause aberration in the course of justice.

[Kartarey v. State of U.P., (1976) 1 SCC 172; Ishwar

Singh v. State of U.P., (1976) 4 SCC 355; Chaudhari

Ramjibhai Narasangbhai v. State of Gujarat, (2004) 1

SCC 184; Amar Singh’s case (Supra)]

16. In the absence of any other evidence linking the accused to

the murder of the deceased, the testimony of PW-3

discarded, there is no other direct or circumstantial

evidence, ocular or otherwise, linking the accused be it on

the point of motive or the incident. It is in this backdrop we

find the Courts below to have seriously erred. The settled

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principles of convicting the accused on circumstantial

evidence, enunciated by this Court in Sharad Birdhichand

Sarda v. State of Maharashtra (1984) 4 SCC 116, have not

been followed by the Courts below.

17. It is true that concurrent findings of facts of the Courts

below, are usually, not to be interfered with. However, it is

only in the presence of exceptional circumstances, this

Court exercises its wide powers where there is travesty of

justice and when absurd and erroneous conclusions are

drawn by the Courts below. We are of the opinion that this

is one such case fit for exercising the powers entrusted to us

as a duty under Article 136 of the Constitution in lite of

principles enunciated in: Ramaphupala Reddy v. State of

Andhra Pradesh, (1970) 3 SCC 474; Balak Ram v. State

of U.P., (1975) 3 SCC 219; Bhoginbhai Hirjibhai V. State

of Gujarat, (1983) 3 SCC 217.

18. We may record that the High Court seriously erred in

finding the accused guilty of having committed the offence

of murder under Section 302, Indian Penal Code. In its

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judgment running into 21 pages, the Court has simply

reproduced the decisions rendered by this Court and

presumptively, without actually appreciating or discussing

the testimony of PW-3, held him to have deposed truthfully,

fully establishing the prosecution case, against the accused,

beyond reasonable doubt.

19. Unfortunately, none of the courts below have referred to the

basic principles of criminal jurisprudence. We may also

state that the Courts must refrain from committing such

grave errors in the future, whereby innocent people are

made to suffer incarceration for over a period of nearly two

decades, without proper appreciation of evidence.

20. Hence, we set aside the judgments passed by the Ld. Addl.

Sessions Judge, Fast Track Court at Surendranagar,

Gujarat in Sessions Case No. 27 of 2002, dated 19.07.2003,

titled State Government of Gujarat v. Narendrasinh

Keshubhai Zala, as affirmed by the High Court of Gujarat at

Ahmedabad vide judgment in Criminal Appeal No, 1037 of

2003, dated 29.12.2011, titled Narendrasinh Keshubha Zala

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v. State of Gujarat and acquit the accused (Appellant herein)

of all the charges framed against him.

The present appeal is allowed.

We direct the Appellant to be released forthwith unless

required in any other case.

…..………………..J.
(B.R. Gavai)

…..…………………J.
(Vikram Nath)

Dated: 16th March, 2023

Place: New Delhi …………………….J.
(Sanjay Karol)