Gujarat High Court
Lilubha Mahobatsinh And Ors. vs State Of Gujarat on 22 August, 1990
Equivalent citations: (1991)1GLR266
JUDGMENT K.J. Vaidya, J.
1. This common appeal by seven accused persons arises out of the judgment and order dated 29th September, 1984, rendered in Sessions Case No. 102 of 1982 by the learned Additional Sessions Judge, Bhavnagar, wherein they (accused) on being tried for the alleged offences under Sections 302, 147, 148 and 149 of I.P. C, at the end of the trial, came to be convicted for the same and were sentenced to R.I. for life and to pay a fine of 200/- etc. as stated in detail in the impugned order.
2. The prosecution case to be briefly stated is that on 4th August, 1983, at 7-00 a.m. on the outskirt of village Senderda of Taluka Sihor, seven accused persons arming themselves with weapons like Axes, Spears, Dhariyas and Sticks, formed an unlawful assembly with a common object to commit murder of one Bapalal Dhirubhai and in pursuance of the same, all of them assaulted him causing instantaneous death on the spot. This incident was witnessed by two witnesses namely - (i) Jasubha Jorubha; and (ii) Kama Khimsi, from a distance of about 20 ft. After the accused left the scene of offence, on going near to injured Bapalal, finding that he had passed away, Jasubha asked Kama Khimsi to sit by the side of the dead body of Bapalal and went to the village to inform about the incident to the wife of deceased. On way, he met one Laxmiram Jamnadas near Panchayat Office and while narrating him about the incident, asked him to go to Songadh Police to file complaint. This Laxmiram subsequently feeling unnerved, passed on the said information to one Batukbha Rupsinh who met him at about 9-00 a.m. on Songadh Bus Stand and requested him to go to the Police Station and file complaint at Songadh Police Station. Thereafter, Batukbha went to Songadh Police Station where his complaint Ex. 24 was taken down by Head Constable Jamalbhai Rahimbhai. On the basis of this information, Police came to the village at about 12-00 noon and the alleged F.I.R. of Jasubha Jorubha came to be recorded at about 1-00 p.m. Thereafter, accused came to be arrested on the very day at about 8-00 p.m. After the investigation was over, the accused came to be chargesheeted for offences under Sections 302, 147, 148 and 149 of I.P.C. to stand the trial before the learned Sessions Judge, Bhavnagar.
3. The defence of all the accused at the trial was that of total denial.
4. The prosecution in order to prove its case, in all has examined 15 witnesses. Out of which the most important witnesses are two eye witnesses namely: (1) P.W. 1 Jasubha Jorubha, Ex. 21; and (2) P.W. 3 Kama Khimsi, Ex. 22. The evidence of these two witnesses is further sought to be corroborated by other witnesses namely - (1) P.W. 2 Dr. J.J. Mehta, Ex. 19; (2) P.W. 6 Laxmiram Jamnadas, Ex. 27; (3) P.W. 8 Babiben, widow of deceased Bapalal, Ex. 29; (4) P.W. 4 Batukbha Rupsang, Ex. 23; (5) P.W. 7. Bakuba Khemubha, Ex. 28-mother of the deceased; (6) P.W. 14, H.C. Jamalbhai Rahimbhai, Ex. 43; and (7) P.W. 15 I.O.L.J. Hingrajia, Ex. 45. The prosecution has also examined certain other witnesses as Panch witnesses, but since neither of the party before us has referred and relied upon the same, we do not deem it necessary to mention them.
5. The trial Court accepting and relying upon the prosecution evidence, convicted and sentenced all seven accused for the alleged offences as stated in detail in para-1 of this judgment. It is against this or for that the present appeal is preferred by the appellants-accused.
6. Mr. V.M. Barot, the learned Advocate for the appellants-accused while challenging the order of conviction and sentence, made the following two submissions:
(i) That the medical evidence brought on the record does not fully accord with the ocular version of two eye witnesses inasmuch as the same negatives the use of a stick or spear while inflicting injuries on the person of deceased Bapalal, as there are no external marks either of contusion or punctured or stabbed wounds.
(ii) That since the prosecution story unfolded by two eye witnesses namely: (1) P.W. 1 Jasubha Jorubha, Ex. 21; (2) P.W. 3 Kama Khimsi, Ex. 22, right from inception sounds basically unnatural and improbable, there are all possibilities of these eye witnesses subsequently being propped up to bolster up the false prosecution case against the accused.
7. As against the above, Mr. S.P. Dave, the learned A.P.P. with all vehemence has supported impugned judgment and order of the trial Court.
8. In order to appreciate the submission made by Mr. Barot, it is necessary first of all to briefly go through the material evidence on the record.
9. Accordingly, P.W. 1 Jasubha Jorubha, Ex. 21, is a right person to begin with as he is one of the two eye witnesses who claims to have witnessed the incident first and from the close proximity. This witness in his evidence before the Court has stated to the effect that the deceased Bapalal was his cousin brother and was residing in adjoining house. That all accused persons were distant relatives and were of his village. On the day of incident at 7-00 a.m. when he was in his Wadi, he saw Bapalal Dhirubhai (deceased) going to answer the call of nature. After some time, he also followed to answer the call of nature. At this time, Bapalal was 35 to 40 ft. ahead of him. At some distance on way to Wadi, one Kama Khimsi was grazing his buffaloes. On completing the answer to the call of nature, when Jasubha was about to stand up to go, he heard "oi...oi" scream of Bapalal whereupon the shouted to Kama Khimsi asking him to run. Thereafter, when both these witnesses were at a distance of about 20 ft. they saw all seven accused assaulting Bapalal with Spears, Axes, Dhariyas and Stick. Jasubha thereafter asked accused persons not to beat (Bapalal) and stop. Thereafter accused went away. This witness in his evidence has further stated that at the point of time when the assault took place, the accused Nos. 3 and 6 were armed with Spears, and accused Nos. 4 and 5 were armed with Dhariyas, accused Nos. 2 and 7 were armed with Axes, while accused No. 1 was armed with a Stick. On going near Bapalal, he breathed last and passed away. This witness Jasubha thereafter requested Kama Khimsi to stay by the side of the deceased at the place of incident so that he can go to the house of the deceased and inform the family members. He has further stated that Bapalal had received serious injuries on chest, neck and head. Jasubha thereafter went to the house of the deceased and informed his wife that the sons of Lilubha and Udubha had murdered Bapalal. Thereafter, Jasubha went in village to inform about the incident and at the comer of Panchayat Office, one Laxmiram Maharaj met him. Jasubha disclosing the entire incident asked him to report the same at the Songadh Police Station. According to Jasubha, the cause of this incident was a long standing rivalry between the deceased and the accused. It was alleged that accused No. 1 had some years back committed murder of one Dolatsing and Manubha-both of whom happened to be uncles of the deceased Bapalal. The accused No. 1 was sentenced to life in the said murder case. Thereafter it was alleged that deceased Bapalal and accused No. 3 were doing Wheat business and there was some money dispute between them and because of that the relations between the two were strained. On the day of incident, the accused No. 1 was Sarpanch of the village. It is also further stated by this witness that bout six months before the incident took place, the leading persons of the village had intervened and compromised the dispute between Bapalal on the one hand and accused Nos. 1, 2 and 3 on the other hand. Even after the said compromise, the relations between parties had not become that cordial. This witness further stated that at about 12-00 noon, two Constables came in the village. P.S.I, came thereafter at bout 2-00 p.m. and recorded his complaint produced at Mark-A. Now the evidence of this eye witness Jasubha is sought to be corroborated by another eye witness viz. P.W. 3 Kama Khimsi, Ex. 22. His evidence is verbatim on the same line with that of the evidence of Jasubha. The prosecution has also examined P.W. 6 Laxmiram Jamnadas, Ex. 27, who happened to be a peon in Senderda Panchayat serving under the Sarpanch Lilubha-the accused No. 1 herein. This witness also while corroborating the evidence of Jasubha has further stated that when he was going to Songadh Police Station for giving information, at that time accused Nos. 1 and 2 were found with Stick and Axe in their hands. The Axe which was with accused No. 2 appeared to be blood-stained. At Songadh Bus Stand, one Batukbha Rupsang of village Jitori met him and he informed him that Bapalal has been murdered by accused Nos. 1 and 2 and their sons. He further stated that as he was afraid of giving a complaint against the accused persons because he was serving under Lilubha-accused No. 1, he requested Batukbha to give information to the Police Station and not to disclose his name. As a result, Batukbha went to give the said information. He has further stated that the Police had recorded his statement on the very day. P.W. 1-Babiben Jambha, Ex. 29, who happens to be wife of the deceased Bapalal is yet one more witness examined in order to corroborate the evidence of Jasubha. She has stated that on the day of the incident, Jasubha had come to her house in the morning and said "run, the sons of Lilubha and Udubha had murdered Bapalal". As a result, she immediately rushed to the place of the incident and took the head of her husband in her lap. Kama Khimsi, second eye witness who was present there and he told her that Lilubha, Udhubha and their sons armed with Spears, Axes etc. had committed murder of Bapalal. She has further stated that Kama had also given the names of sons of Lilubha and Udubha, who were accused Nos. 3 to 7. She has further stated that relations of her husband with the accused were not cordial and that her husband after taking the crop was to leave village Senderda to stay at Bhavnagar. The next witness in the line of corroborative link of evidence is the evidence of P.W. 4 Batukbha Rupsang, Ex. 23. This is a witness who in fact was asked by P.W. 6 Laxmiram Jamnadas to go to Songadh village and file, a complaint, when he met him at the Bus Stand. According to this witness, on the day of the incident at 9-00 a.m. when he was at Songadh Bus Stand, Laxmiram came there and informed him that Bapalal was murdered. On making inquiry as to who were the assailants, Laxmiram told him mat accused Nos. 1 and 2 and their sons have committed the murder and that since he was afraid, requested Batukbha to file complaint. Accordingly, Batukbha went to Songadh Police Station walking and informed P.W. 14, Jamalbhai Rahimbhai, Ex. 43, that he has heard rumour from the bus passengers that Lilubha, Udubha and their sons had murdered Bapalal Darbar of village Senderda. This was reduced in writing at 9-45 a.m. and is produced as complaint at Ex. 24. This witness has further deposed that about 35 to 40 years back, the accused No. 1 had committed murder of the uncle of Bapalal, in which case the present accused No. 1 was sentenced to life.
10. Medical evidence: P.W. 1 Dr. J.J. Mehta, Ex. 1 Medical Officer, Government Hospital at Sihore, while conducting the autopsy of the dead body of Bapalal, noticed 15 external and three internal injuries, as shown in Col. Nos. 17 and 21 of the post-mortem notes, produced at Ex. 20, which are as under:
External Injuries:
1. A I/W of 5" x 2" x 2" front of neck in middle starting from chin to Hyoid prominence, Dislocation of Hyoid bone seen.
2. A I/W of 1" x 1/2" x 1/2" deep to bone on manubrium sterni.
3. A I/W of 3" x 1 1/2" deep to cavity over, apigastric region just below jifi-stanum, through which intestine coming out.
4. A I/W of 2" x 1" deep to cavity over (Lt.) hypochondrium just below costal margine, 2" away from midline.
5. A I/W of 2" x 1 1/2" x 1" deep to muscles over (Rt.) cervical region situated transversely 3" below (Rt. ear).
6. A I/W of 1 1/2" x 1/2" x 1/2" over (Rt.) supre clewicular region situated transversely.
7. A I/W of 1" x 1/2" x 1/2" deep to muscles over ant. aspect of (Lt.) shoulder 2" below acromion process.
8. A I/W of 5" x 2" x 2" deep to muscles over (Lt.) ant. axillary fold, extending over (Lt.) pectoral region transversly.
9. A I/W of 5" x 1 1/2" x 1 1/2" deep to muscles over antero-medial aspect of hyper 1/5 of (Lt.) upper arm.
10. A I/W of 3" x 1" x 2" deep to muscles situated transversely on (Rt.) paralumber region on back 2" lateral to 2nd L. vertibra.
11. A I/W of 5" x 1 1/2" x 1 1/2" deep to muscles, through which bone is seen, on post-aspect of (Rt.) forearm. 3" below the elbow.
12. A I/W of 3" x 1" x 1" deep to muscles on web beth. (Rt.) thumb and index finger extending over dorsum of hand.
13. A I/W of 1" x 1 1/2" deep to cavity over (Rt.) hypochondrium 1 1/2" below and parallel to (R.t) costal margine.
14. A I/W of 7 1/2" x 2" deep to cavity situated transversely 2" above (Rt.) iliac crest from which wound is extending medially over abdomen.
15. A I/W of 3" x 1 1/2" x 1" deep to muscles, situated transversely on (Lt.) scapular region at the level of 3rd thorasic veribra, 3" lateral to midline.
Internal Injuries:
1. A laceration of 2" x 1/2" corresponding to ext. injury No. 3 seen on ant. wall of stomach, about 100 CC of semi-digested (food particles seen in stomach).
2. A small laceration seen over splenic fletor of large intestine, corresponding to external injury No. 4.
3. A laceration of 4" x 1 1/2" x 2/ on ant. surface of liver corresponding to external injury No. 13.
In the opinion of Dr. Mehta, the cause of death of deceased Bapalal was shock resulting from laceration of intra-abdominal organs. Further, according to Dr. Mehta, all aforesaid external injuries were possible by muddamal weapons like Axe, Dhariya and Spear shown to him.
11. Mr. Barot in order to make good his first submission, invited our attention to a reported decision of the Supreme Court in the case of Lakshmi Singh and Ors. v. State of Bihar . In para 14 of the said judgment, it has been observed as under:
There is yet another important circumstances which completely falsifies the evidence of the eye witnesses. All the eye witnesses have consistently deposed that after the deceased Chulhai Singh was assaulted by Lakshmi Singh and fell down, the appellants Chhathu Singh and Ramprasad Sah assaulted him with lathis. Yet the medical evidence of Dr. Ramadhar Singh shows that there was only one solitary injury on the person of the deceased Chulhai Singh and that was on the adbomen. No other injury of any kind was found by the Doctor on any part of the body of Chulhai Singh. The absence of lathi injuries on the person of Chulhai Singh completely falsifies the evidence of the witnesses on a most material point. Mr. U.P. Singh appearing for the State tried to explain away this important lacuna on the ground that the inquest report shows that there were some sort of injuries on the back of the body of the deceased Chulhai Singh which may have disappeared by the time the Doctor examined the deceased Chulhai Sing. We are, however, unable to agree with this somewhat farfetched explanation. It was for the prosecution to corroborate the evidence of the eye witnesses through expert evidence of the Doctor, and if no lathi injuries were found it was affirmatively for the prosecution to give reasons for the same. No question was however put to the Doctor in re-examination that if the deceased had received lathi blows the injuries could have disappeared by the time the Doctor examined the deceased. Moreover, the inquest report also does not show any particular physical injury on the person of Chulhai Singh but merely mentions a swollen injury on the back which may be due to the fact that the deceased Chulhai Singh fell down after receiving the bhala blow. The Sub-Inspector was not an expert on the subject and his observation in the inqest report is absolutely valueless. Thus, in short, so far the deceased Chulhai Singh is concerned, the ocular evidence is totally inconsistent with the medical evidence with respect to the assault by Chhathu Singh and Ramprasad Sah. If this matter is false, there is no guarantee that the other assault deposed to by the eye witnesses was also not false.
12. There is a considerable force in the above submissions made by Mr. Barot. In fact, on perusing the injuries noted down in the P.M. report Ex. 20, it is very clear that all the 15 external injuries received by the deceased Bapalal were incised wounds. There is not a single injury which can be said to be inflicted by way of hard blunt substance like a stick. This reasonable rules out the use of stick in commission of the alleged offence. Thus to the said extent, the medical evidence does not corroborate the two eye witnesses. Further still out of the said 15 injuries received by the deceased, there is not a single injury which can be said to be a punctured or a stabbed wound which can be caused by a weapon like a spear. Thus, this also safely rules out the possibility of spear having been used in inflicting injuries on the person of the deceased Bapalal and therefore to the said extent also, the medical evidence belies the evidence of two eye witnesses. In this view of the matter, the definite allegation by two eye witnesses that accused No. 1 armed with a stick and accused Nos. 3 and 6 armed with spears were beating Bapalal with respective weapons in their hands stands falsified by the medical evidence which is an independent evidence on record. This type of evidence undoubtedly shakes the credibility of any eye witnesses. As a matter of fact, once it is found that these two eye witnesses have displayed a tendency to falsely attribute particular weapons in hands of particular accused, what is the guarantee that they are not falsely implicating the concerned accused as well? The doubt thus arisen cannot and would not rest here as a further question can certainly arise viz. that if the witnesses have an interest and an audacity to implicate three innocent persons in such a serious charge of murder, what is the guarantee that they are truthful and honest regarding complicity of other accused in crime particularly when all accused belong to one family? Thus, having regard to the facts and circumstances of the case, we will not be stopping by saying merely that the medical evidence does not corroborate the eye witnesses' account, rather we would put it more emphatically by saying that the medical evidence on the record belies the evidence of the two eye witnesses.
13. As against the above, Mr. S.P. Dave, the learned A.P.P. invited our attention to paragraph 68 of the impugned judgment and submitted that merely because on the person of the deceased, there were no injuries which can be said to have been caused either by a stick or a spear, it would not be proper to straightaway infer that the medical evidence does not corroborate the eye witnesses' account. In support of this, the learned A.P.P. drew our attention to the observation made by the trial Court in the said paragraph 68 of the judgment which in substance reads like this: "It is possible that injuries to the deceased can be caused by inflicting side blows with the spear and therefore it all depends upon as how actually blows came to be delivered by accused Nos. 3 and 6 on the person of the deceased at the time of the incident. Further, it is also possible that after accused No. 1 first caused injury by a stick, subsequently, if at a very place another injury by the sharp cutting instrument came to be inflicted, then under such circumstances, at the time of making the post-mortem of the body of the deceased, the injury caused by the stick could not have been noticed. Further still, it is also possible that all accused though present at the time of the incident with the respective weapons in their hands, some of them did not have any opportunity to beat Bapalaletc. etc." Now with due respect to the trial Court, it is. not possible for us to endorse the above reasoning. Not that, such inferences are always necessarily false but then there is no guarantee of the same being true also. Such over-stretched inferences are risky enough to be drawn and are simply impermissible under a criminal jurisprudence. When the appreciation of evidence centres round the realm of speculations and conjectures of "can be", "may be", we should not forget that the also as well "cannot be". It is none of the functions of the Court to bridge the gaps between what is actually found in the evidence on the record and what can be and what cannot be with the aid of mere inferential engineering by the Court. Taking first into consideration the incised wounds on the person of the deceased, in a given case, no doubt the same could be caused by a spear if its blow just bruises or grazes past by side blows. But such is not a case of any of the two eye witnesses in the instant case. Though the two eye witnesses were at a distance of about 20 to 25 ft. and claim to have seen entire incident, yet they are silent as to manner in which the accused inflict spear or any other injuries found on the person of the deceased Bapalal. Ordinarily, when any witness alleges that spear blow was given, it means use of it in a manner which causes decisive injury. Such a decisive injury by a spear can be caused by using it straight, causing punctured or a stabbed wound. Further, the P.M. notes reveal nature of wounds as incised wounds, which completely rules out side injuries by use of a spear. At least what is being argued before us now at this stage is a matter which could have very well been put to the Doctor and eye witnesses and got clarified from them. While appreciating such type of evidence, the trial Court must carefully avoid being lured into explaining away circumstances which suits prosecution case only. Whenever occasion arises for taking a view of the matter by drawing inference, the one that is compatible with the innocence of the accused, must be give due deference and preference.
14. In the instant case, Dr. Mehta in para 6 of his deposition has stated that - "the external injuries found on the person of the deceased were possible by sharp cutting weapons, like Axe, Dhariya and Spear, shown to him". Now this type of general opinion is no more than a layman's opinion as there is no flash of expertised knowledge in it. As a medical expert taking into consideration the nature of weapon, its size, weight, etc. efforts could have been made to show as to which particular incised wound could reasonably connected with a particular weapon shown to him. We feel that such opinions, standing by itself, fail little short of assistance, not that solely because of that the prosecution has to suffer in all cases. We feel that it is always desirable that while giving evidence before the Court, the Doctor, as a medical expert, whenever possible, should connect the injury with a weapon alleged to have been used in the commission of offence.
14.1 On going through the evidence of Dr. Mehta, we feel something deserves to be expressed for the purpose of proper and meaningful trial. In every criminal trial a Doctor who is examined as a medical expert has a duty to depose in a manner which facilitates and assists all concerned. Sometimes, when inadvertently a Doctor misses to depose on some vital aspect, it is a duty of the learned P.P. in-charge of the matter to see that missed link is properly linked up at least in re-examination, and if for whatever reason even the learned P.P. fails to discharge his duty, the Court's vigilance and duty must rise to the occasion for doing the needful in the larger interest of the justice. It cannot be a "be all and end all" for any Court to merely rest content either by approving or disapproving the evidence before it particularly when it can as well activate itself and do something to assist the cause of justice.
14.2 Further, yet one another important aspect to which a special attention needs to be focused is regarding Doctor's obssession in using the jargon of the medical terminology and phraseology while deposing before the Court. It is indeed good and matter of pride to learn to add to one's knowledge new and new words and phrases from different languages on any interesting subject, but Court is certainly not the place for the same. Whenever a Doctor is called upon to give an evidence as an expert before the Court, his expertise knowledge should be simplified and made intelligible enough not only to the Court and defence Counsel, but also to those who are tried for the alleged injuries caused by them. Talking of the instant case, Dr. Mehta while deposing before the Court in Gujarati language, has also used certain English words and terminology without giving corresponding meaning to them in Gujarati language. As a matter of fact, even in cases where a Doctor is giving evidence in English language, he is expected to depose in a language which is simple and understandable to all concerned. This appears to be the reason why Dr. N.J. Modi in his "Text book of Medical Jurisprudence and Toxicology" in its First Chapter under caption "Legal Procedure in Criminal Courts" has given useful tips to Doctors, which in substance reads as under:
(1) Doctors should use plain and simple language avoiding all technicalities, as the bench and bar are not expected to be familiar with medical terms. For instance, he should use "bruise", for "contusion" "bone of the arm" for "humerus", "shoulder blade" for "scapula", "collar bone" for clavicle, "gullet" for "oesophagus", windpipe for "trachea", "lining membrane of the stomach" for "gastric mucous membrane", for "haemorrhage", "covering of the heart" for "pericardium" etc. It is no use showing ones erudition by using these terms, however if he cannot help using medical term he should try to explain it in ordinary language as far as that is possible.
14.3 It has got to be remembered that the Doctor is examined by the prosecution to assist the Court in understanding the nature of injuries, by what weapon the same can be caused, whether the weapons shown can cause that particular injury and cause of death or not. Now this assistance is rendered better if the Doctor reflects his expertise knowledge in simple language avoiding technical medical jargons. Thus, whenever the Doctor is giving evidence, it is desirable for a trial Court to see that he is reminded of using simple intelligible medical words and phrases in place of the English jargon of medical terminology.
15. This takes us now to the second challenge of Mr. Barot as regards the reliability of the two eye witnesses and rest of the set of corroborative evidence. First attacking the evidence of eye witness P.W. 2 Jasubha, Ex. 21, Mr. Barot submitted that taking into consideration the already discussed medical evidence on the record, which has clearly belied the evidence of this witness regarding complicity of accused Nos. 1, 3 and 6, it would be simply hazardous to accept the evidence of Jasubha. Mr. Barot further submitted that other material improvements made before the Court and his wholly unnatural conduct after the incident further renders the evidence of Jasubha totally unworthy of any credit. Mr. Barot submitted that while giving evidence before the Court, Jasubha improved upon his earlier version before the Police regarding weapons in hands of each of the accused persons. In paragraph 3 of his examination-in-chief, Jasubha improving upon his earlier version has stated to the effect that the accused No. 1 was armed with a Stick, accused Nos. 2 and 7 were armed with Axes,accused Nos. 3 and 6 were armed with Spears and accused Nos. 4 and 5 were armed with Dhariyas. Now this very Jasubha when confronted with has previous statement before the Investigating Officer, in para 10 of his cross-examination emphatically denied not to have stated which accused had which of the weapons in their respective hands. This contradiction is clearly brought out on the record in para 12 of deposition of P.W. 15 Investigating Officer L.J. Hingrajia, Ex. 45. This ever-zealous attitude in improving upon the earlier version by Jasubha gives an index to his mind as regards his deep interest in making the case fool-proof so that none of the accused escape conviction. It is indeed difficult to comprehend that the witness: (i) who was so closely related to the deceased; (ii) who was aged 43 years and therefore of quite a mature age; (iii) claims to have seen the incident not in part but in its entirety, and that too (iv) from a distance as short as that of 15 to 20 ft. just failed to see particular weapon in the hands of a particular accused. One can quite understand that in a given case when there are number of accused persons, a witness may sometimes commit some honest mistake in connecting some accused as causing particular injury, with particular weapon on a particular part of the body of the injured or deceased. It is quite conceivable that in a given case when a stranger happens to be an eye witness of a sudden assault with different kind of weapons by different accused like the one in the present case, his faculty of observation may fail him to connect the accused with their weapons with corresponding injuries on the body of the person concerned. But that is not the case here, Jasubha had a goodclose-up to view the incident with background of knowing the accused and the deceased. At this juncture, it will be relevant to refer to the evidence of P.W. 4 Batukbha Rupsang, Ex. 23, who at the instance of Laxmiram Jamnadas went to the Police Station and filed complaint Ex. 24 on the basis of rumour at about 9-45 a.m. This in a way, indicates that upto 9-45 a.m. no definite facts as to who caused the murder of Bapalal were available and possibly Jasubha also having heard the rumour, was tempted to pass on a message to the Police first through Laxmidas and then Batukbha. Thus, taking an overall stock of the situation till the time Police came to village at about 12-00 noon and thereafter the P.S.I. recorded the statement of Jasubha at 1-00 p.m., everything was in the state of flux and realm of wild conjectures. It appears that only after the appearance of the Police in the village that the offence-data started clicking and channelised in a direction giving shape and colour to the prosecution case substantiating the rumour. Further, the prosecution is not in a position to utilise the evidence of P.W. 6 Laxmiram Jamnadas, Ex. 27 for any corroborative purpose as this witness has also surprisingly improved upon his earlier version while deposing before the Court on two counts viz. (i) that the accused No. 1 was standing with the blood-stained Axe near his house; and (ii) that as he was serving under accused No. 1, he was afraid. These two contradictions are also proved in para 14 of the cross-examination of P.W. 15 I.O., L.J. Hingrajia, Ex. 45. The credibility of an eye witness Jasubha become further doubtful in the light of evidence of P.W. 8 Bababen Jambha, Ex. 29, wife of the deceased. The evidence of this witness cut at the very root of the evidence given by Jasubha. It appears from the evidence that when Jasubha first contacted Bababen, he had a different story to tell her viz. "run sons of Lilubha and Udubha murdered Bapalal". This particular statement clearly reveals that neither accused No. 1 nor accused No. 2 were involved in the offence at the earlier stage, nor the names of the sons of the said accused came to be disclosed, though Jasubha very well knew the said names. There is no particular reason for Bababen, wife of the deceased, to give a story different than the one given by Jasubha. Thus, the evidence of Bababen, as stated earlier, makes a serious inroad on already shaky testimony of Jasubha. No efforts have been made by the learned P.P. in-charge of the matter to show that Bababen through some inadvertant mistake has not given the correct account. She has not been declared hostile. Thus, the material omission on the part of Bababen in not naming any of the accused and in particular assolving accused Nos. 1 and 2 renders the evidence of Jasubha utterly unreliable. The earliest version given by Jasubha while disclosing the news of the incident to Bababen, more or less appears to be by way of hearsay account only rather than an eye witness's account. The evidence of Bababen accordingly completely takes wind out of the sail of the prosecution case.
16. That takes us to the evidence of the second eye witness, viz. P.W. Kama Khimsi, Ex. 22. As regards this witness, the learned A.P.P. Mr. Dave submitted that he was an independent witness and therefore the trial Court was amply justified in placing the implicit reliance upon him. We have carefully examined the evidence of Kama Khimsi. However, despite the alleged label of independent witness, he has failed to impress us as a reliable witness. His evidence suffers from the same infirmities from which the evidence of Jasubha is found to be suffering. This witness has clearly improved upon his earlier version before the Police by attributing specific weapons in the hands of each of the named accused. When confronted with the same in para-11 of his cross-examination, he explained away the situation by saying that he did state before the Police the same version which has been given before the Court; however, the Police might not have taken down. Now this important contradiction is brought out in para-13 of the cross-examination of P.W. 15 L.J. Hingrajia, Ex. 45. The matter does not rest here as his conduct of leaving the scene of offence at 9-00 a.m. also does not appear to be so natural, particularly when Jasubha asking for his help shouted him at the time of incident. Not only that, thereafter also, he has asked him to sit by the side of the dead body of Bapalal. This witness has also stated before the Police that Jasubha told him "You sit here. I am going to village to inform". Thus, taking into consideration the aforesaid improvements and the unnatural conduct, we do not feel safe to place reliance upon the evidence of Kama Khimsi.
17. Thus, looking back upon the prosecution evidence for recapitulating the actual incident that took place, the very genesis of the entire incident, in our opinion, appears to be shrouded in a mystery. Jasubha in his evidence has stated that he has got his Wadi in the vicinity round about the scence of the offence. Wadi comes first. He saw Bapalal going to answer the call of nature and immediately he followed him and was at a distance of about 30-40 paces. Similarly, Kama Khimsi has also stated that he was grazing his buffaloes at the relevant time at some distance, from where he saw the assault by the accused on the deceased. Now both these witnesses quite surprisingly enough do not say a word as to before the alleged incident actually took place, whether any accused persons were seen present or moving about in the vicinity. May be, when a person is engrossed in his work, his attention ordinarily would not be available in noticing the round about happenings, but what surprises us most is a fact that both Jasubha and Kama Khimsi, just before the incident, were not engrossed in such an attentive work that they would fail to notice the accused persons in round about area or some exchange of words taking place between accused and the deceased. In a case where as many as seven accused persons armed with lethal weapons like Axes, Dhariyas and Spears are alleged to have mercilessly assaulted Bapalal causing as many as 15 injuries, it does not stand to reason that these accused persons, were not seen at that point of time or nothing had immediately happened prior to the said incident till the time the assault came to take place. As a matter of fact, something must have happened a day prior to the incident or some days before between the deceased Bapalal and the accused persons and Jasubha who is related to the deceased, cannot be presumed to be ignorant about the same, and yet nothing comes on the record. In this view of the matter, when the genesis of the prosecution case is not clear, it is not possible for us to accept that the incident took place in the manner suggested by the prosecution witnesses. If that is the situation, it would be simply risky and hazardous to seal the fate of as seven accused persons belonging to the same family with transportation of life.
In the result, this conviction appeal is allowed. The impugned judgment and order of conviction and sentence is quashed and set aside. All the seven accused persons are directed to be released forthwith, if they are not required in connection with any other case. Fine, if paid, to be refunded.