BHAVAL SHIVA v. STATE — 1991 DIGILAW 296 (GUJ)

S. D. DAVE, J. ( 1 ) WHILE taking up these 3 Appeals arising out of the judgment of conviction and sentence pronounced by the learned Addl. Sessions Judge (Ld. A. S. J.), Rajkot in Sessions Case No. 10 of 1985 dated 8-8-1985 convicting the appellant accused for the offences punishable under Secs. 147, 148, 149 with Sec. 302 of the Indian Penal Code. We would like to commence writing out brief opinion with the preamble that the judgment under challenge is ex-facie erroneous and that the conclusion are based upon no evidence and that the judgment of convictions could not have been the end product of the judicial process, namely the Sessions trial, before a Sessions Court. Now the brief facts : ( 2 ) THE seven accused persons were put on trial before the learned a. S. J. , Rajkot for the alleged commission of the offences punishable under secs. 147, 148, 302, 324 and 323 read with Sec. 149 of the I. P. C. on the accusation that the 7 accused persons had formed themselves into an unlawful assembly on 11-7-1984 at about 7-30 p. m. at village Modhuka under the Jasdan taluka of the Rajkot district and had committed rioting with deadly weapons and had murdered deceased Pola Mashru and had caused injuries to the prosecution witnesses, namely, Ramuben, Jesing and pratap. It appears that the accused persons who happened to be the members of the same family were related slightly distantly, to the deceased pola Mashru. The son of the deceased Pola Mashru was employed at the instance of the accused No. 1 in a sugar factory and it appears that, later on he had met with some mishap and had lost his life. Certain proceedings for acquiring the compensation for the accidental death of the deceased were to be initiated and that, therefore, it is the case of the prosecution that some affidavits were required to be filed by the accused no. 1. Any how it was not done by them and therefore according to the case of the prosecution there was some dispute between the complainant side and the accused people. It is therefore case of the prosecution that on 11-3-1984 at about 7-30 p. m. the accused persons who were the members of the unlawful assembly and who were armed with deadly weapons like sticks, axe and dharias etc. It is therefore case of the prosecution that on 11-3-1984 at about 7-30 p. m. the accused persons who were the members of the unlawful assembly and who were armed with deadly weapons like sticks, axe and dharias etc. had committed rioting and had assaulted upon deceased Pola Mashru and 3 other persons, namely ramuben, Jesing and Pratap, Pola Mashru had sustained serious injuries and he had later on expired. The FIR was registered and the investigation had started. After the investigational stage was over the accused persons were put on trial before the learned A. S. J. , Rajkot. The charge at Exh. 1 for the alleged commission of the above said offence came to be denied by the accused persons. The prosecution evidence was adduced and later on the original accused persons No. 4 and 5 namely Shantaben Dalsukh and Samjuben Shiva were accorded the benefit of doubt and they were acquitted. The rest of the accused persons came to be convicted for the offences punishable under Sec. 147, 148, 302 read with Sec. 149 of the i. P. C. They have been awarded imprisonment for life. The convicted accused have preferred these 3 appeals from the Jail. The original accused no. 6 Hiruben came to be enlarged on bail during the pendency of her appeal. ( 3 ) MR. Dipak M. Shah the learned Advocate who has been appointed for the appellant accused has urged that the judgment of conviction and sentence rendered by the learned A. S. J. is based upon on evidence and that no judicial process could have culminated in the verdict of guilt. Mr. Shah has made a strong grievance that a case which could be branded easily as a case of no evidence has ultimately resulted in the conviction of the appellants and they could be sent behind the bars after awarding the imprisonment for life. Mr. Shah therefore has urged that, looking to the evidence on record and further looking to the conclusion and the reasonings assigned by the learned A. S. I. the present appeals require to be allowed. Any how Mr. Mr. Shah therefore has urged that, looking to the evidence on record and further looking to the conclusion and the reasonings assigned by the learned A. S. I. the present appeals require to be allowed. Any how Mr. Shelat the learned A. P. P. who appears on behalf of the respondent-State has tried his best to support the judgment of conviction and sentence as pronounced by the learned A. S. J. ( 4 ) IN the preamble we have hastened to say that the judgment rendered by the learned A. S. J. is ex facie erroneous and that the judicial process could not have culminated in the verdict of guilt. We say so on the basis of the evidence which was made available to the learned A. S. J. At the out set it requires to be appreciated that the case of the prosecution is that the accused persons were armed with deadly weapons like sticks, dharias and axe. The charge speaks of the same thing, the FIR also strongly speaks of the above said weapons. This aspect of the case of the prosecution, according to us, assumes great significance because as it would become clear within moments the case put forth by the complainant and the alleged eye witnesses is entirely a different one. ( 5 ) FIRSTLY taking up the medical evidence, i. e. , the oral testimony tendered by Dr. Sathparia, P. W. No. 7, Exh. 24 and the postmortem report at Exh. 25, it becomes abundantly clear that the deceased Mashru Pola was found to be having four injuries, including the C. L. W. on the left side of the head alongwith certain other fractures. Dr. Sathparia had expressed a categorical opinion by saying that all the above said injuries were possible by hard and blunt substance. During the cross-examination the same opinion came to be expressed by the medical expert in different words. He has stated very clearly that none of the above said injuries were possible by any sharp cutting instrument. ( 6 ) STRANGELY enough the evidence of the complainant and other alleged eye witnesses is entirely different because according to them the attack was launched by the accused persons by the sharp cutting instruments like axe and dharias. Jesing Mashru P. W. 1, Exh. ( 6 ) STRANGELY enough the evidence of the complainant and other alleged eye witnesses is entirely different because according to them the attack was launched by the accused persons by the sharp cutting instruments like axe and dharias. Jesing Mashru P. W. 1, Exh. 15 has stated that the incident had taken place on 11-7-1984 between 6 to 6-30 p. m. at village Modhuka and at that time the accused No. 1 had assaulted upon the deceased by the dharia and the dharia injury was received by the deceased on leg. According to this complainant, the accused No. 7 Shiva had given a dharia blow on the head of the deceased. Moreover, according to this complainant Jesing the accused No. 2 Bhavla had given the axe blows on the person of the deceased. Therefore it is clear, beyond any manner of doubt that the complainant Jesing P. W. No. 1 talks of the assault by the above said 3 accused persons by the sharp cutting instruments like dharias and axe. It is also the case of the prosecution that during the incident ramuben also came to be injured by the axe blow and the injury which was caused in the above said fashion was on her abdomen. Ramuben, P. W. No. 2, Exh. 16 has testified that the incident had taken place at about 7 to 7-30 p. m. at village Modhuka and that the accused No. 1 had given a dharia blow to her husband on the leg and that the leg was cut off in two piece. Her say further is that not only the leg but the forearms of her husband were also chopped off by the accused No. 2 by giving dharia blows. Not satisfied with having made by above said exaggeration, ramuben has further stated that the accused No. 2 had given the axe blow on the temporal region of her husband, as a result of which the eye ball was taken out. It is also her say that the accused No. 1 had given the axe blow on her person which was received by her on the abdomen. At the out set it requires to be appreciated that no medical evidence was brought forth with a view to substantiate the say of Ramuben regarding her own injury on the abdomen which could have been caused by the axe blow. At the out set it requires to be appreciated that no medical evidence was brought forth with a view to substantiate the say of Ramuben regarding her own injury on the abdomen which could have been caused by the axe blow. Moreover as noticed above Ramuben also described the assault by saying that the accused persons had utilised sharp cutting weapons like dharia and axe and that two legs and forearms of the deceased were cut into piece. P. W. No. 3 Kulan Exh. 17 has not supported the case of the prosecution, and therefore he has been declared as hostile witness and therefore his evidence is of no avail to the prosecution. Labhuben P. W. No. 4, Exh. 18 has also described the assault on the person of the deceased and the injury with great details. According to her the accused No. 1 had given the dharia blow to the deceased and in the same way the accused no. 7 had also caused dharia injury on the person of the deceased. According to this witness the accused No. 2 had given the axe blow on the person of the deceased. Therefore, P. W. No. 4 Labhuben also talks of the assault on the person of the deceased and injured Ramuben by sharp cutting instruments. P. W. No. 8 Rahim Exh. 26 has tried to say that the assailants were having dharias and sticks etc. Any how he has made a candid admission during cross-examination that his version before Police was, that he came to know regarding the incident from jesing who had told him that the accused persons have escaped after the assault. ( 7 ) THE above said is the evidence adduced by the prosecution with a view to establish that the accused person were the authors of the crime. We have noted earlier that through Ramuben says that she came to be injured during the incident by the axe blow no medical evidence in this respect comes forth. This aspect would lead us to take the view without any hesitation that Ramuben is telling a patent lie in respect of her injury also. Moreover, it is the case of the prosecution that two other witnesses, namely Jesing and Pratap also came to be injured during the incident. Suffice to notice that Jesing and Pratap have not been examined. This aspect would lead us to take the view without any hesitation that Ramuben is telling a patent lie in respect of her injury also. Moreover, it is the case of the prosecution that two other witnesses, namely Jesing and Pratap also came to be injured during the incident. Suffice to notice that Jesing and Pratap have not been examined. Moreover there is absolutely no evidence regarding the above said two persons receiving any injury on their person. ( 8 ) THE learned Advocate appearing of the defence before the learned a. S. J. had taken pains to invite the pointed attention of the learned A. S. J. to certain Supreme Court decision saying that as the medical evidence on record was contradicting the ocular evidence to a very great extent, no reliance could have been placed upon the same. Having not satisfied with the above said exercise, the learned Advocate for defence had also preferred, to submit the detailed written arguments reiterating his say and pointing out certain supreme Court decisions in this respect. It is really very unfortunate that this vital aspect of the case has escaped the notice of the learned A. S. J. Learned A. S. J. was indeed, conscious that there is a great discrepancy in the evidence which was made available before his Court. He was also conscious of the fact the medical evidence was running contrary to the ocular evidence in such a fashion, that ordinarily no reliance could have been place upon the same. Any how the learned A. S. J. wanted to place reliance upon the above said contradictory evidence and therefore he has tried to explain away the situation by saying that he was dealing with a case which was based upon the evidence of the rustic or village witnesses and that, therefore there might be a tenancy on the part of such witnesses to "exaggerate the case or speak before the Court in an ornamental language". We should frankly admit that, we have not at all been impressed by the above said reasoning adopted by the learned A. S. J. On the contrary we are of the firm belief that the learned A. S. J. himself appears to have adopted "exaggerated and ornamental reasoning" with a view to cover the above said discrepancy which was coming out of the evidence on record. ( 9 ) THE conclusion therefore is that the contention raised by Mr. Shah the learned Advocate appearing on behalf of the accused persons require to be reality accepted. The case would have been otherwise if there would have been a minor discrepancy and if the ocular evidence tendered by the complainant and the eye witnesses were to be such as to inspire our confidence we would have preferred to overtook the above said discrepancy. But as noticed above and as has been rightly pointed out by the learned Advocate for the appellants the contradiction between the ocular and the medical evidence assumes such a great proportion that no judicial mind would like to place reliance upon such evidence. The result is obvious and the appeals before us require to be allowed. The judgment of conviction and sentence rendered by the learned A. S. J. requires to be set aside and the accused persons require to be acquitted of the charges for which they have been convicted by the learned A. S. J. Accordingly we allow these 3 appeals and do hereby set aside the judgment of conviction and sentence as pronounced by the learned a. S. J. The accused persons are hereby acquitted of the offences punishable under Secs. 147, 148, 302 read with Sec. 149 of the Indian Penal Code. All the appellants, excepting appellant Bai Hiru are in Jail and they be set at liberty forthwith, if not required in any other criminal case or proceedings. The bail bond in respect of the above said appellant who is on bail shall stand cancelled. ( 10 ) BEFORE parting with this set of appeals, may we express an earnest desire and hope that the learned Sessions Judges, working throughout the state bestow their best attention while appreciating the evidence of this nature, on the basis of which, more than one person are sought to be sent behind the bars for the life time. ( 11 ) MAY we add that the riddle of ocular evidence versus medical evidence had been on the anvil of the Supreme Court and of this Court on various occasions, with varied fabric of facts but the Rule of Law hammered out can be said to be rather uniform. ( 11 ) MAY we add that the riddle of ocular evidence versus medical evidence had been on the anvil of the Supreme Court and of this Court on various occasions, with varied fabric of facts but the Rule of Law hammered out can be said to be rather uniform. It has been ordained and reiterated that where the ocular evidence is totally inconsistent with the medical evidence it is a most fundamental defect in the prosecution case and unless reasonably explained, it is sufficient to discredit the entire case. Also, that in a murder case if there is a glaring inconsistency between the ocular and medical evidence it will be hazardous to base conviction on such evidence. This is what is ordained by the Apex Court of the Nation and by this Court. The message sought to be conveyed is unequivocal. The transmission thereof is clear, now let there not be any snag at the receiving end, or else what might be received would be a little less and a little too late. ( 12 ) AND lastly a look at Art. 141 of the Constitution of India which decrees that the law laid down by the Supreme Court of India shall be the Law of the Land, binding to all the Court, situated on all other platforms, coming under that Top Plank Situs. ( 13 ) WE think that, before putting aside the case file, we have done the requisite post decision duty also. .