K. J. VAIDYA,J. ( 1 ) * * * * * * * * * ] ( 2 ) * * * * * * * * * ] ( 3 ) * * * * * * * * * ] ( 4 ) * * * * * * * * * ] ( 5 ) * * * * * * * * * ] ( 6 ) * * * * * * * * * ] ( 7 ) THAT takes us now to yet one more Doctor namely PW 14 Dr. Vasant Barot who while conducting the Post Mortem Examination of the deceased Benaji Tejaji found the following three injuries on his person : (1) Oblique incised wound on the left 4th, 5th interecostal space in mid clavicular line about 7 cms. away from mid line; 5 cms. x 2 cms. deep to the internal structure; blood clots. (2) Oblique incised wound 2. 5 cms x 1. 5 cms. x 1/4 cm. on medial aspect upper 1/3rd left leg. Blood clots present. (3) Oblique abrasion antra aspect of left shoulder by 1 cm x 1 cm. 7. 1 According to this Doctor, cause of death was due to shock and hemorrhage as a result of injury to vital organ (heart ). Further, according to him, (after seeing muddamal sword) the injury in question can be caused, if pointed portion of it is pierced. Now this pw-14 quite surprisingly in cross- examination, has admitted that injury No. 1 is caused by giving a blow with sword and not by piercing it and that is why he has described the id injury as incised wound!! He has also further admitted in the cross-examination that in his P. M. Examination Ex. 72, he has not made any special note regarding the piercing wound. The depth of injury no. 1 which is shown by him is regarding piercing. Now on face of it, the evidence of PW 14 is inconsistent and totally confusing. It is simply difficult to understand as to what indeed the learned APP in charge of the case was doing at the relevant time when PW-14 was giving evidence and while cross-examined in a most confused manner, by not getting it clarified, if possible by putting certain question in re-examination, and if the need be by declaring him hostile! It is simply difficult to understand as to what indeed the learned APP in charge of the case was doing at the relevant time when PW-14 was giving evidence and while cross-examined in a most confused manner, by not getting it clarified, if possible by putting certain question in re-examination, and if the need be by declaring him hostile! Surprisingly enough even the learned Judge has also not thought it fit to check, control and get clarified PW-14 giving heller skelter evidence like a weather-cock!! Every trial Judge and PP must remember that when the trial is conducted in the Court room, it is not a drama to be witnessed from the distance, or like a video camera operator shooting the video picture or seeing some cassettes on the video. It indeed and certainly calls for active participation both of the learned Trial Judge and the learned PP failing which it can amount to dereliction of duty on their part!! Anyway, the evidence of PW-14 is so confusing that prima facie it appears that for whatever reasons, he had given evidence to oblige the defence and yet neither the learned trial Judge nor the learned PP could do anything to salvage the situation where they could have realized that hole of doubt created by PW-14 was capable of sinking the prosecution ship and in fact it has sunk the ship!! ( 8 ) * * * * * * * * * ] ( 9 ) * * * * * * * * * ] ( 10 ) * * * * * * * * * ] ( 11 ) * * * * * * * * * ] ( 12 ) * * * * * * * * * ] ( 13 ) TO summarize the aforesaid evidence, it is indeed very clear that (I) after the first incident at 9-30 p. m. , PW-18 Chandansinh came on the scene of the offence, (II) In all probability it was PW-18 who picked up the quarrel with accused Nos. 2 and 3, as admittedly situation had calm down prior to his arrival, (III) It further appears that the accused Nos. 2 and 3, as admittedly situation had calm down prior to his arrival, (III) It further appears that the accused Nos. 2 and 3 being aged about 68 and 55 respectively, when harrassed by employes of factory, that the persons residing in the street nearby appeared to have ran to rescue them, (IV) It is under these circumstances that somebody from the crowd under some unknown circumstances all of a sudden gave a sword blow on the chest of Banaji Tejaji. (V) It is also clear that out of 21 accused persons, many were unknown to the prosecution witnesses and yet no test identification parade was held, (VII) It is also further clear that injuries received by the aforesaid prosecution witnesses are absolutely trivial or infact no injuries at all and stage managed only with a view to project them present at the time of the incident having seen the murder of Benaji. (VIII) It is equally surprising that if the accused No. 1 Kamlesh intended to kill PW-18, then he certainly would not have spared him and given only one solitary sword blow and that too with the handle of sword, (IX) It is further clear that there is no overtact alleged against any of the accused except the omnibus allegation of pelting of the stones, the story which is patently absent in the FIR!! (X) The most improbable and perplexing is the prosecution story that when the accused no. 1 was arrested after three days of the incident he was found wearing bloodstained clothes!! (XI) There cannot be any greater violence on common sense than to accept such cock and bull story, (XII) The most fantastic part is the complaint by PW-3, which admittedly was given on the basis of the information passed on by the accused No. 12 jagdish was accepted by the trial Court, (XIII) The material part of it viz. , a sword blow given by the accused No. 1 was not stated at all at the gate when PW-3 reached there. Under these tell-tale circumstances totally hostile to the prosecution rendering it quite difficult to accept, to rope-in innocent persons from the crowd regarding whom no test identifications parade even was held and yet to charge and convict them for the alleged offences under Section 302 read with sections 143, 147, 148 and 149 of IPC le. Under these tell-tale circumstances totally hostile to the prosecution rendering it quite difficult to accept, to rope-in innocent persons from the crowd regarding whom no test identifications parade even was held and yet to charge and convict them for the alleged offences under Section 302 read with sections 143, 147, 148 and 149 of IPC le. , is something difficult, to gulp down and believed by any average intelligence of the judicial officer and yet we find that as many as 8 persons on thoroughly useless evidence have been sentenced to life. To say the least, this is simply shocking!! It is indeed a very said commentary on the appreciation of evidence mode by the trial Court, mr. Shethna was indeed right when he submitted thatfrom^vhere indeed are we to give back the lost most precious 8 years of life to accused No. 1 Kamlesh and seven others when on such patently infirm and unbelievable evidence by no stretch of imagination any order of conviction could ever have been recorded!! Under the circumstances, with utmost respect we request the learned Judge henceforth to be extremely careful and circumpect in mechanically accepting the evidence of prosecution witnesses before recording the conviction under Section 302 of IPC. We also hope and trust that in future proper care will be taken while appreciating the prosecution evidence before sentencing any person to the life imprisonment mechanically applying sections 143, 147, 148 and 149 of IPC. In our opinion, the identity of the accused No. 1 as having given a sword blow is not established at all beyond doubt!! As a matter of fact, looking to the nature of the evidence, the real facts are suppressed. A gloss is given to the prosecution story for the reasons best known to the prosecution side and accordingly, the whole genesis of the prosecution case is rendered doubtful The allegation by the learned advocate for the appellants that the whole thing was cooked up by PSI who was at Mahidharpura Police station and who happens to be brother of PW- 18, because of whom the entire story was cooked up cannot be ruled out!! Doubt does arise but remains doubt only in absence of other material. Doubt does arise but remains doubt only in absence of other material. Of course, it is stated by the witnesses that at the relevant point of time, psi Barot was not in the police station and on the date of the incident, he was on leave. According to PW-20 who at the relevant time was PSO at Mahidharpura Police Station has in his cross-examination admitted that one man came to inform him regarding the incident that when he started from Galemandi Gate to the scene of offence, on the way in between the time, the informant had not given any information, no names of the appellant were disclosed. Even the allegation regarding sword blows given was also not reported. Of course, it is true that this witness has not specifically named PW-3 Babuji Dalaji who had gone to Galeman Gate Police Station. Be the case as it may, but on such type of thoroughly useless evidence, no order of conviction could ever have been even remotely be recorded and under the circumstances the same is required to be quashed and set-aside. ( 14 ) * * * * * * * * * ] ( 15 ) * * * * * * * * * ] .