This Criminal Appeal arises out of a judgment and order rendered by learned Sessions Court, Ahmedabad Rural in Sessions Case No.80 of 2004 on 04/04/2006. The appellants by the said judgment came to be convicted for the offences punishable under Section 302 r/w 34 and under Section 120 (B) r/w 34 of the Indian Penal Code ('IPC' for short) and under Section 135 (1) of the Bombay Police Act. The appellants have been sentenced to undergo imprisonment for life with a fine of Rs.1,000/- in default to undergo SI for one month for the offence punishable under Section 302 r/w 34 of the IPC. For the offence punishable under Section 120 (B) r/w 34 of the IPC, the appellants have been sentenced to undergo six months RI and to pay a fine of Rs.500/- in default to undergo 15 days SI. For the offence punishable under Section 135 (1) of the Bombay Police Act, the appellants have been sentenced to undergo one year RI and to pay a fine of Rs.500/-, in default, to undergo one month SI. All the sentences were ordered to run concurrently and benefit of set of is given to the appellants. 2. The brief facts of the case are that on 01/10/2003, one Jayesh Shankerbhai was proceeding on his motorcycle alongwith Kiran Madhubhai near Chimanbhai Harjibhai Patel's bungalow at Rajivnagar at about 2:30 a.m. It is the case of the prosecution that they were intercepted by the four accused – appellants and attacked by deadly weapons like stick, iron pipe and steel rod, which resulted into several injuries suffered by the deceased, to which he ultimately succumbed. Companion of the deceased – Kiran Madhubhai was on the pillion seat of the motorcycle. He was manhandled by the accused persons and that the accused persons attacked the deceased. He, therefore, got scarred and ran away.
2.1 As per the prosecution case, at the relevant time, there was prohibition on carrying deadly weapons in public as per Notification issued under Section 27 of the Bombay Police Act.
2.2 FIR was lodged. On basis of which offence was registered and investigated and charge-sheet was filed in the Court of learned Chief Judicial Magistrate, Ahmedabad Rural, who in turn, committed case to the Court of Sessions and Sessions Case No.80 of 2004 came to be registered. Charges were framed against the accused persons for the offence punishable under Section 302 r/w 34 of the IPC, 120 (B) r/w 34 of the IPC and under Section 135 (1) of the Bombay Police Act. Accused persons pleaded not guilty to the charge and came to be tried. The trial Court after recording the evidence and after considering the evidence on record, recorded conviction as stated herein above and hence this appeal.
3. Learned Advocate for the appellants Mr.P R Abichandani submitted that the prosecution has examined as many as 18 witnesses. Out of these 18 witnesses, two persons viz., PW No.2-Kiran Gohil (Exh.23) and P.W. No.10-Shrinamsinh (Exh.47) claimed to be eye-witnesses. Kiran was the occupant of the pillion seat, whereas, Shrinamsinh was a watchman working in the bungalow just opposite to the place where incident is alleged to have occurred. The evidence also consists of two Doctors, Dr.Saumil Premchand and Dr.Kuldip Joshi examined at Exh.17 and 66 respectively. The evidence of these witnesses is very relevant. Mr.Abichandani submitted that these pieces of evidence, if seen, they create an impression that the prosecution case is proved beyond reasonable doubt, but a closure and objective look at the evidence, would show that there is material inconsistency in the prosecution evidence, which is not only explained, but no attempt is made by the prosecution. He submitted that if the evidence of two eye-witnesses is seen, the four assailants were armed with deadly weapons like stick, iron pipe and iron rod. No other weapon is attributed to any one. If this evidence is seen in juxtaposition with medical evidence, there are three stab wounds and nine incised injuries which can only be attributed to a sharp cutting weapon like knife. There is no evidence on record to show as to how these injuries came on person of the deceased or how did he suffer.
3.1 It is contended that if the evidence is closely seen, it makes it clear that even medical evidence is inconsistent for the reason that some of the injuries which are noticed in postmortem notes are not noticed by the Doctor who examined the deceased first. The Doctor in his evidence attributes the incised wounds to iron rod. In cross- examination, at one stage he says that such injuries are possible and at next breath he says that such injuries are not possible. It was therefore contended that when the deceased had stab wounds on his person and when the deceased had incised wounds on his person, it was for the prosecution to explain as to how these injuries were suffered by the deceased. The prosecution has failed to prove that. It is not disputed that the deceased died homicidal death, but who caused that death is not proved by the prosecution and, therefore, the appeal may be allowed.
3.2 Learned Advocate for the appellants relied on several judicial pronouncements in support of his case.
opposed this appeal. According to him, evidence of a natural and truthful witness would consist certain inconsistencies or contradictions resulting out of memory loss on account of efflux of time. It may also happen that there may be a lapse in making observations and then describing the same. But, if the occular evidence and the medical evidence are not totally inconsistent or contradictory, the medical evidence would lend credence to the occular evidence and make it more trustworthy. He, therefore, contended that the appreciation of evidence by the trial Court is just, legal and proper and this Court may not interfere with the findings recorded by the trial Court and may dismiss the appeal.
5. We have examined records and proceeding in context of rival submissions.
6. At the outset, we may record that the day on which the incident occurred was one of the days of Navratri. The incident occurred at about 2:30 a.m. in the morning. As per the prosecution case, deceased and eye-witness – Kiran had gone to attend Garba and then they decided to go for a cup of tea. While they were going on motorcycle, driven by the deceased, four accused persons intercepted them. They were armed with pipe, iron rod, stick, etc. They first pulled down the pillion rider-Kiran and then attacked the deceased. In this context, if evidence of Kiran at Exh.23 is seen, he states that on 01/10/2003 there was Navratri and deceased – Jayesh used to come there for playing Garba at about 9:30 and used to return to home after the programme was over. On that day, the Garba programme was over by 2:00 a.m. and therefore, he and Jayesh started for a cup of tea on motorcycle of Jayesh. Cross- examination would reveal that it was not a regular feature that Jayesh and this witness would move together on the motorcycle. It also emerges from cross-examination that Jayesh used to go during Navratri days and used to come after the programme is over. On day of incident also, they had played Garba and thereafter had left for having a cup of tea.
6.1 The above evidence would show that it was not a regular practice of the deceased or witness – Kiran to go for a cup of tea on this hour of the day from the place where the incident occurred. It is also required to be noted that witness – Kiran and other eye-witness P.W. No.10-Shrinamsinh (Exh.47) depose consistently that when the deceased and Kiran reached the place of incident, four persons intercepted and pulled down the pillion rider and then attacked the deceased. The picture that emerges therefore, is that the assailants were waiting at the place with the respective arms as if they had previous information, about which there is no evidence worth a name coming. On the contrary, the evidence that comes on record would go to show that it was not a regular practice of the deceased or witness – Kiran to pass this place at this odd hour of night. It is nobody's case that the deceased and witness – Kiran were chased and, therefore, presence of accused persons at the place of incident as if they were waiting for the deceased to come there itself becomes a matter of doubt.
7. The consistent version that emerges from evidence of P.W. No.2-Kiran (Exh.23) and P.W. No.10- Shrinamsinh (Exh.47) is that the four assailants intercepted the motorcycle, pulled down the pillion rider and attacked the deceased with the respective weapons and pillion rider – Kiran ran away from the place. The pillion rider –Kiran therefore cannot be said to have seen the complete episode. He saw the first attack, got scarred and ran away. But one thing that consistently emerges from prosecution evidence is that neither of the two eye-witnesses speak of presence of any fourth person at the place of incident or presence of any other weapon with any of the assailants.
7.1 P.W. No.2-Kiran (Exh.23) after escaping from the place of incident, goes and informs his friends. Whereas, P.W. No.10-Shrinamsinh (Exh.47) he sits in his chair and watches the incident. He being a watchman of the bungalow opposite the place of incident, does not intervene, nor does he raise any shout for help. Be that as it may, individual reacts to an incident in different manner, but fact remains that P.W. No.10 also does not speak of presence of any other persons or use of any other weapon, particularly a sharp cutting weapon by any of the assailants, although he claims to have witnessed the entire episode. On Kiran informing, his friends come to the place and take the deceased to hospital for treatment where he is admitted and treated.
8. At the hospital, initially he was treated by Dr.Vishwamitra. Dr.Vishwamitra is not examined but the case papers prepared by him are brought on record and the contents are proved through evidence of P.W. No.14-Dr.Kuldip Joshi (Exh.66). From evidence of this Doctor, it is found that there were as many as 7 CLWs noticed by Dr.Vishwamitra and recorded in the medical case papers. Strangely, however the medical case papers prepared by Dr.Vishwamitra do not speak of any three stab and nine incised injuries, which were later on noticed and recorded in the postmortem notes. It is also required to be noted that Dr.Vishwamitra, in turn, referred a patient to other department where the history sheet speaks of “attack by arms (sharp cutting)”. Again on 01/10, there is a reference of history by Neurosurgeon which runs thus:
“H/O beaten by sharp weapon at around 2:30 a.m.”
Again, in the medical case papers, there is a reference of similar nature which runs thus:
“History of beaten by opposite party by sharp edged cutting object.”
Again on the same date, at 3:30 there is some history of sword injuries over face and head and multiple incised wounds and CLW on right side of face. All these notings consistently speak of use of a sharp edged weapon by the assailants.
9. Against this, no sharp edged weapon is recovered, seized or brought before the Court. It is not the case of prosecution that either the accused or anybody else ever used any sharp edged weapon in commission of this alleged crime. P.W. No.1- Dr.Saumil Premchandbhai (Exh.17), however, in his evidence has attributed incised wounds to the iron rod. In this context, his evidence needs to be recorded. He admits that muddamal article No.5 is not a sharp cutting weapon. He also admits that injuries No.1,2,3,4,5,7 and 10 were possible with hard and blunt substance. He then goes to admit that injuries No.11, 12 and 13 were stab wounds and were not possible with either a stick or a iron pipe or a rod. Then, he admits that incised wound is possible with sharp edged weapon only. This admission has to be read in the context of his earlier version that muddamal article No.5 is not a sharp edged weapon. On one breath, he says that it is not true that injuries No.6,9 and 14 to 19 are not possible with muddamal article. In the next breath, he says that it is not true that injuries No.6, 9 and 14 to 19 are possible with muddamal article No.5. This reflects confused state of mind of the witnesses about the nature of weapon, nature of injury and their co- relation.
10. We may add here that there are as many as three stab wounds and nine incised wounds. Their locations are such that none of the three stab wounds could have been caused by a blow. Similarly, the incised wounds were nine in number and they could not have been caused by one or two blows. The necessary inference is that these twelve injuries were caused by multiple blows. Such act could not have gone unnoticed by P.W. No.10 who claims to have seen the entire episode. Therefore, either he was not present at the place or he has not seen the incident or he is depicting a correct picture of what transpired at that time. It remains unreconciled as to how deceased suffered so many injuries with sharp edged weapon which went unnoticed by the eye-witness, which still remains unreconciled as to how the assailants could have known that the deceased and the witness were likely to be at the place of incident in these odd hours of night so that they would wait for them armed with deadly weapon. It is unlikely that the accused persons would have come across the deceased and P.W. No.2 as the accused persons had no reason to be there in the vicinity of the area when they were staying at Makarba which is a distance place and therefore, their presence at the place is quite unlikely.
11. Last, but not the least, the motive which is attributed for the attack is an episode which occurred about a year prior to the date of incident, which, in our opinion, is a stale cause and far too remote particularly, when nothing has transpired during this year between the parties.
12. The foregoing discussion would make it clear that prosecution story does not inspire confidence. The evidence of eye-witnesses is inconsistent with the medical evidence making their version unlikely. It was argued that at least that part of the evidence of the eye-witnesses that the appellants attacked the deceased on his head with their respective weapons, which gets support from medical evidence, may be accepted.
13. It is true that the duty of the Court is to separate the truth from untruth and accept only truthful part of the evidence which may be led before it. It is equally true that principle of falsus in uno, falsus in omnibus, cannot be applied in the criminal jurisprudence in Indian Courts. But, at the same time, when the prosecution brings an evidence, which, in part, supports its version, but in part makes a story doubtful and also makes the presence at the place of incident doubtful, the whole story creeps under a cloud of doubt, that either the witness is not telling the truth about the presence of witness at the time of incident or about he having seen the incident or about he having told the truth of the incident or about he attempting to protect the real assailants by not disclosing the presence of such attackers. In the instant case, somebody caused stab wounds and incised wounds to the deceased. They are definitely not the assailants as per prosecution case. If that be so, who were the persons, who caused these injuries, is not brought on record by the prosecution. Either the witnesses are shielding such assailants by not disclosing their presence or the witnesses have not seen the incident at all. If such a situation arises, then the prosecution case becomes doubtful and the benefit of doubt has to tilt in favour of the accused.
14. The trial Court has overlooked these aspects of the case while recording conviction. The conviction, therefore, cannot be permitted to sustain.
14.1 In the result, Criminal Appeal No.1177 of 2006 is allowed. The judgment and order of conviction and sentence rendered by the learned Additional Sessions Judge & Presiding Officer, Fast Track Court No.2, Ahmedabad (Rural) in Sessions Case No.80 of 2004 dated 04/04/2006 is set aside. The appellants are acquitted of all the charges levelled against them. Convicts viz., Dineshbhai Dahyabhai Vala, Devjibhai Dahyabhai Vala and Hashmukhbhai Dahyabhai Vala would be set at liberty forthwith, if not required in any other case. Convict - Dilipbhai Dahyabhai Vala is absconding. Since he is acquitted, he shall also be set at liberty forthwith, if not required in any other case, after he is restored to prison and is dealt with for his abscondence. Fine, if paid by the appellants, is ordered to be refunded to them.
(A L DAVE, J.) (N V ANJARIA, J.) sompura