Gujarat High Court
Chandanji @ Gato Chhanaji Thakor vs State Of Gujarat on 29 September, 2020
Author: Sonia Gokani
Bench: Sonia Gokani, N.V.Anjaria
R/CR.A/424/2020 IA ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR SUSPENSION OF SENTENCE) NO.
1 of 2020
In R/CRIMINAL APPEAL NO. 424 of 2020
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CHANDANJI @ GATO CHHANAJI THAKOR Versus STATE OF GUJARAT ========================================================== Appearance:
HCLS COMMITTEE for the PETITIONER(s) No. MR NEERAJ SONI for the PETITIONER(s) No. MR MANAN MEHTA, ADDL. PUBLIC PROSECUTOR for the RESPONDENT(s) No. ========================================================== CORAM:HONOURABLE MS. JUSTICE SONIA GOKANI and HONOURABLE MR. JUSTICE N.V.ANJARIA Date : 29/09/2020 IA ORDER (PER : HONOURABLE MS. JUSTICE SONIA GOKANI)
1. This is an application under Section 89(1) of the Code of Criminal Procedure for suspension of sentence pending appeal which has been preferred by the present applicant -
convict who is undergoing life imprisonment on account of the judgment and order of conviction dated 25.04.2019 delivered by the learned Sessions Judge, Mehsana in Page 1 of 37 Downloaded on : Mon Feb 15 09:14:01 IST 2021 R/CR.A/424/2020 IA ORDER Sessions Case No. 89 of 2018 for the offences punishable under Section 302 of the Indian Penal Code.
2. The case of the prosecution in a capsulised form is that on 15.04.2018 the complainant - Anilji Arjanji Thakor had gone to attend to his natural call and while he was returning at around 9:00 p.m., he show that the appellant was beating the brother of the complainant i.e. the deceased - Vijayji Arjanji Thakor with wooden log. Jaswantji @ Tinaji Ghabhaji and Vijayji Ghabhaji both intervened. The complainant and the witnesses brought the deceased to the vestibule of the temple and on examining the injuries caused to the deceased, it was realized that on the neck and chest he had sustained injuries.
2.1. The complainant took deceased to the Civil Hospital, Vijapur and during the examination,he succumbed to the injuries and he was declared dead by the doctor. It is the case of the prosecution that the deceased and accused had scuffle in the afternoon, on the date of incident regarding cattle food and the applicant - appellant assaulted the deceased with a Page 2 of 37 Downloaded on : Mon Feb 15 09:14:01 IST 2021 R/CR.A/424/2020 IA ORDER grudge in his mind.
2.2. The FIR being I-CR No. 23 of 2018 came to be lodged by the complainant against the accused for the alleged commission of offence under Section 302 of the IPC. 2.3. After the elaborate trial, the appellant - accused is found guilty and sentenced to life imprisonment.
3. Aggrieved and dissatisfied by the said judgment and order, the applicant - appellant has challenged the same by way of Criminal Appeal No. 424 of 2020 which came to be admitted by this Court on 11.03.2020.
4. The present application is preferred seeking suspension of sentence pending the appeal.
5. We have heard extensively learned advocate Mr. Niraj Soni appearing for the applicant in legal aid and learned APP.
5.1 It is urged earnestly by the Learned Advocate Mr.Niraj Page 3 of 37 Downloaded on : Mon Feb 15 09:14:01 IST 2021 R/CR.A/424/2020 IA ORDER
Soni that the cause of death in case of the applicant has not been proved at all. Therefore, when the medical evidence is completely contrary and cannot be reconciled, the benefit has to be given to the applicant. He has taken us through the entire evidence at length and has urged that the deposition of doctor who examined the deceased and also performed post-mortem makes it abundantly clear that the injuries caused on the person of the deceased are not the injuries which are proved to be fatal or which are considered to be sufficient to cause the death of the person in ordinary cause of nature. Hence, he urged that there is no way in which the offence of Section 302 of the IPC can be said to have been proved. According to him, even if it is believed that the injuries were sustained by the present applicant, unless the medical evidence confirms that they were the injuries which led to the death of the person, the present set of evidence would not permit the Court to continue him in jail at this stage. He also substantiated his oral version with the decisions of various courts which shall find reference at an appropriate place in this order.
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R/CR.A/424/2020 IA ORDER 5.2 Learned APP Mr.Manan Mehta appearing for the State has strongly resisted this application on the ground that ocular version needs to be given primacy over the opinionated version and the law on that aspect is also clear. The applicant is eye witnessed by two witnesses of having committed the crime and hence, what is opined medically is merely an opinion which cannot take away established proof of killing at the hands of the applicant. He also urged that after a full fledged trial, judgement and order of conviction is passed and this court need not suspend the sentence on the grounds urged. He also has sought to rely on the judgements of the Apex Court to support his submissions.
6. On the basis of rival versions, what needs to be regarded at this juncture is the charges against the present applicant which indicate that the dispute on 15.04.2018 in relation to the fodder of cattle between the deceased and the applicant, had resulted into the applicant giving blows to the deceased with a wooden log on the chest and neck and that resulted into his death.
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7. The vital witness at the outset to be regarded will be PW- 1, Dr. Shailesh Patel who stated in his deposition that on 15.04.2020 while he was discharging his duties at around quarter to twelve in the noon, deceased Vijayji Thakor was brought at Community Health Centre, Vijapur. He and one Dr. I.J.Patel in panel had conducted the post-mortem of the body of the deceased on 16.08.2020 at around 7:30 in the morning and completed it at around 9:00 o'clock. According to this witness, the injuries found on the person of the deceased were ante mortem in nature. He had not given any opinion on the cause of the death and had sent the blood as well as pieces of liver, lungs and heart for histopathological examination. He also has stated that wooden log which was seized as muddamal article was capable of causing the injuries reflected in column no.17.
7.1. It is vital to note that in the examination-in-chief, this witness has stated that the cause of death was not given while completing preparations of post mortem note and the same was kept pending. No poison was detected as could be noticed from the Autopsy Report and he categorically stated Page 6 of 37 Downloaded on : Mon Feb 15 09:14:01 IST 2021 R/CR.A/424/2020 IA ORDER that it will not be possible to opine that the death of the deceased was caused on account of the injury sustained. He, in the cross examination, did not agree with the suggestion of the defence that the injuries which were found on the person of the deceased were possible if he falls down and he agreed that the injuries could be possible with hard and blunt substance.
8. Column No.17 of PM note describes the injury as contusion, about 18 cm long to 2.5 cm broad, starting from 7.5 cm below inner end of left clavicle downward and right side up to 3 cm below right nipple, red in colour. In Column No. 19, no injuries were found on the scull nor any fracture noticed and brain was congested. Blood clots were found in both the chambers and coronary arteries. The cause of death is kept pending till report of chemical analysis and histopathology of viscera sent. In histopathology report, it mentions that only single contusion mark is found on the chest. There is no other injury on the body. Blood clots were found present in all chambers of heart.
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9. Apt would be to refer to the deposition of Thakor Anilji Arjanji. They were three brothers, the eldest Bhaveshji died 10 years back and the deceased was youngest. According to him, on the day of incident, around 3:00 o'clock, his brother Vijayji had a dispute with the present applicant and some of his family members in relation to the fodder of cattle. At around 8:30 in the night, when his brother Vijayji was sitting on the vestibule of Repdimata Temple, he show Chandanji @ Gato Chanaji was beating his brother with the wooden log and Thakor Jaswantji @ Tinaji Gabhaji and his brother Vijayji Gabhaji had intervened. They also went there to save his brother when he took him to the temple which was nearby and he was unable to speak. It was Jashwantji who had confined in the complaint that near St. Josheph School, there was a heated exchange between the deceased and the present applicant and out of grudge, these blows had been inflicted. He was taken to the Vijapur Civil Hospital where he was declared dead. He denied the suggestion that the wooden log was handed over by him to the police. He denied that because his brother was unwell, he had hit himself on the head. There are no contradictions in his version.
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10. There is yet another witness examined for proving case of the prosecution of this being the death caused on account of the injuries sustained at the hands of the applicant, being PW-9 Thakor Jaswantji Gabhaji, according to whom, the incident took place on 15.04.2018. There was a dispute between the applicant and deceased. At that stage they saw the deceased - Vijayji and Arunji leaving the St. Josheph School at around quarter to five. The temple from his house is 150 to 200 ft. away. From his window, he could see everything outside. The log with which the deceased was attacked had also been identified by this witness.
11. PW-10 is Thakor Vijayji Gabhaji, who deposed that he and his brother Jashwantji, Arunji, Vihaji and Chandanji went to the St. Josheph School at the stable. Arunji and Vijayji left from there at around 5:00 o'clock. He reached the dome at around 8.00 o'clock. He witnessed shouting and scuffling. The deceased Vijayji was hit with the wooden log by the present applicant. He fell down and therefore, everyone made him lie down at the temple. He denied of not having eye Page 9 of 37 Downloaded on : Mon Feb 15 09:14:01 IST 2021 R/CR.A/424/2020 IA ORDER witnessed the incident. According to him, at the steps of the temple, they were sitting when it was dark however, they could see easily the place of the incident.
12. PW-11 Thakor Sendhaji stated on oath that he saw a mob at around 8:00 o'clock while he was returning home. He had also seen Vijayji to have lied down at temple steps. It was Vijayji's brother who had confined that it was Chandanji @ Gato Chanaji had beaten him.
13. Thus, there are three eye witnesses who have spoken of the wooden log being used for giving blows on the chest and the neck and his having succumbed to the injuries soon thereafter. The doctor who performed post-mortem, in no unclear terms stated that it is not possible for him to opine that the injuries shown at Column no. 17 can cause the death of the person in ordinary cause of nature.
14. That being the case, it is rightly urged by the learned advocate Mr. Niraj Soni to notice serious discrepancy between the medical evidence as well as ocular evidence Page 10 of 37 Downloaded on : Mon Feb 15 09:14:01 IST 2021 R/CR.A/424/2020 IA ORDER entitling the applicant the discretion of suspension of sentence therefore, the law on the subject is necessary to be considered at this stage.
15. Following are the authorities which have been relied upon for this purpose and which would need a closer look:
(i) CBI v. Mohd. Parvez Abdul Kayuum [(2019) 12 SCC 1]
(ii) Mallikarjun Versus State Of Karnataka [2019 (8) SCC 359]
(iii) Balvir Singh Versus State Of Madhya Pradesh [AIR 2019 SC 2983]
(iv) Himanshu Mohan Rai Versus State Of Uttar Pra-
desh [2017 (4) SCC 161]
(v) Solanki Chimanbhai Ukabhai v. State of Gujarat [1983 (2) SCC 174]
(vi) State of Haryana v. Bhagirath [(1999) 5 SCC 96]
(vii) Dhirajbhai Gorakhbhai Nayak v. State of Gujarat [(2003) 9 SCC 322]
(viii) Thaman Kumar v. State of U.T. of Chandigarh [(2003) 6 SCC 380] Page 11 of 37 Downloaded on : Mon Feb 15 09:14:01 IST 2021 R/CR.A/424/2020 IA ORDER
16. Taking firstly the decision in case of CBI v. Mohd. Parvez Abdul Kayuum [(2019) 12 SCC 1], before the Apex Court it was a case where medical evidence did not completely improbabilise the ocular evidence and the Apex Court has held that in that eventuality, the ocular evidence need not be discarded. In the said judgment, reliance was placed on the decision of Abdul Sayeed v. State of Madhya Pradesh [2010 (10) SCC 259] where the Court made the law abundantly clear that where there is a contradiction between the medical evidence and ocular evidence, the ocular testimony of the witness has greater evidentiary value visa- vis medical evidence,however, when medical evidence makes ocular testimony improbable, that becomes the relevant factor in the process of evaluation of evidence.
"50 The deposition of PW-55 was sought to be fur- ther discredited on the ground that when feet came up, he could not refer to the position of knees with reference to the steering. The witness is not sup- posed to give all these minute details. It is not a case where medical evidence completely improbabilises the ocular evidence only on that case the ocular ev- idence has to be discarded not otherwise. Reliance has been placed on behalf of accused on Abdul Sayeed v. State of Madhya Pradesh, 2010 (10) SCC 259 thus:Page 12 of 37 Downloaded on : Mon Feb 15 09:14:01 IST 2021
R/CR.A/424/2020 IA ORDER "39. Thus, the position of law in cases where there is a contradiction between medical evidence and oc- ular evidence can be crystallised to the effect that though the ocular testimony of a witness has greater evidentiary value vis- -vis medical evidence, when medical evidence makes the ocular testimony improbable, that becomes a relevant factor in the process of the evaluation of evidence. However, where the medical evidence goes so far that it com- pletely rules out all possibility of the ocular evidence being true, the ocular evidence may be disbelieved."
(emphasis supplied) 51 In Nallapati Sivaiah v. Sub-Divisional Officer, Guntur, A.P., 2007 (15) SCC 465 the court observed: "52. The dying declaration must inspire confidence so as to make it safe to act upon. Whether it is safe to act upon a dying declaration depends upon not only the testimony of the person recording the dying declarationbe it even a Magistrate but also all the material available on record and the circumstances including the medical evidence. The evidence and the material available on record must be properly weighed in each case to arrive at a proper conclu- sion. The court must satisfy itself that the person making the dying declaration was conscious and fit to make statement for which purposes not only the evidence of persons recording the dying declaration but also cumulative effect of the other evidence in- cluding the 2 medical evidence and the circum- stances must be taken into consideration." (empha- sis supplied) 52 In State of Rajasthan v. Bhanwar Singh, 2004 (13) SCC 147 the Court observed: "6. We find that the High Court has carefully analysed the factual position. Though, individually some of the circumstances may not have affected veracity of the prosecution version, the combined effect of the infirmities noticed by the High Court is sufficient to show that the prosecution case has not been estab- Page 13 of 37 Downloaded on : Mon Feb 15 09:14:01 IST 2021
R/CR.A/424/2020 IA ORDER lished. The presence of PWs 3, 4 and 8 at the al- leged spot of incident has been rightly considered doubtful in view of the categorical statement of PW 5, the widow that she sent for these persons to go and find the body of her husband. It is quite unnat- ural that PWs 3, 4 and 8 remained silent after wit- nessing the assaults. They have not given any ex- planation as to what they did after witnessing the assault on the deceased. Additionally, the unex- plained delay of more than one day in lodging the FIR casts serious doubt on the truthfulness of the prosecution version. The mere delay in lodging the FIR may not prove fatal in all cases. But on the cir- cumstances of the present case, certainly, it is one of the factors which corrodes credibility of the pros- ecution version. Finally, the medical evidence was at total variance with the ocular evidence. Though ocular evidence has to be given importance over medical evidence, where the medical evidence to- tally improbabilises the ocular version that can be taken to be a factor to affect credibility of the prose- cution version. The view taken by the High Court is a possible view. The appeal being one against ac- quittal, we do not consider this to be a fit case where any interference is called for. The appeal fails and is dismissed." (emphasis supplied) 53 In this case, it cannot be said that ocular evi- dence is belied by the medical evidence. It was also submitted on behalf of the accused that when the eye witness made an improvement to suit medical evidence which has come on record by itself, it is sufficient to discredit him. Reliance has been placed on Shingara Singh v. State of Haryana & Anr., 2003 (12) SCC 758 in which this Court has observed:
"22. In our view, the High Court has completely missed the significance of the finding recorded by the trial court. The trial court found that in the FIR 3 as also the statements recorded under Section 161 CrPC the witnesses had clearly mentioned that both the appellants had climbed on top of the wall and from there Shingara Singh, A-2 fired at Surinder Page 14 of 37 Downloaded on : Mon Feb 15 09:14:01 IST 2021 R/CR.A/424/2020 IA ORDER Singh. If this version were to be accepted, the injury caused would not have been of the nature found by the Medical Officer who was clearly of the opinion, having regard to the trajectory of injuries, that the person firing the firearm was at a lower level than the victim. Therefore, with a view to bring their case in consonance with the medical evidence on record, all the three witnesses made significant changes while deposing in court and all of them thereafter consistently stated that while A-1 had climbed on top of the wall A-2 stood on the ladder in such a manner that only his face was visible from across the wall and while standing in that position, keep- ing the barrel of the gun on the wall and without resting the butt of the gun against his shoulder, he fired at the deceased. There was no dispute that their deposition in court was consistent, but what was observed by the trial court was that their ver- sion as to the manner of occurrence as deposed to by them was at variance with what was stated in the first information report by PW 5, and in the statements of PWs 6 and 7 recorded under Section 161 CrPC. When confronted with their earlier state- ments, they could not give a satisfactory explana- tion, with the result that their credibility was suffi- ciently impeached. The change of version by each one of them, and to the same effect, was deliberate and not merely accidental or on account of lapse of memory. It cannot be disputed that this was a very significant change. It cannot also be disputed that the change was deliberately made by all the wit- nesses so that the prosecution case became con- sistent with the medical evidence on record. We, therefore, do not find any error committed by the trial court in coming to this conclusion." (emphasis supplied)
54 Reliance has also been placed by learned coun- sel for the accused on Ram Narain Singh v. State of Punjab, 1975 (4) SCC 497 in which this Court has observed:
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R/CR.A/424/2020 IA ORDER "2. ........We might also mention here that the defi- nite case of the prosecution before the Sessions Judge was that while the shot was fired at the de- ceased Teja Singh by Ram Narain Singh he had kept the right hand flexed on his chest. It was thus stated by the eyewitnesses that at the time 4 of fir- ing, the deceased had put his right hand on his chest. These two additions or embellishments ap- pear to us to have been necessitated in order to bring the evidence of the eyewitnesses in conso- nance with the evidence of the doctor as also that of the ballistic expert, and we shall deal with this as- pect of the matter a little later....
xxx xxx xxx
6. ........ This particular posture was undoubtedly a most conspicuous fact which could not have been missed by the witness if it was really there. In these circumstances, therefore, we should have expected this fact to be mentioned in the FIR but it is conspic- uously absent from the FIR, nor was this fact men- tioned by either Surjit Singh or his brother Joginder Singh in their statements before the police or before the committing Magistrate. It seems to us that the theory of the deceased having placed his arm on the right side of his chest has been introduced only af- ter the doctor who was examined as the second wit- ness in the Sessions Court stated in his examina- tion-in-chief that if the elbow of right arm is flexed lying in front of the chest, then injuries Nos. 1 to 4 could be caused with a single firearm discharge. It would appear that this witness was examined be- fore the Sessions Court on May 14, 1973, and PW Surjit Singh was examined on the same day after the evidence of the doctor was recorded. PWs Surjit Singh and Joginder Singh had to introduce the the- ory of the deceased having put his right arm on his chest to bring the occurrence in tune and in conso- nance with the evidence of the doctor. This was un- doubtedly a belated idea because if it had been a fact there is no reason why the eyewitnesses should not have deposed to it in their statements before the police or even before the committing court. Page 16 of 37 Downloaded on : Mon Feb 15 09:14:01 IST 2021
R/CR.A/424/2020 IA ORDER Till that time the witnesses were not aware of the injuries said to have been caused to the deceased Ram Narain Singh by a single fire unless the de- ceased was in a particular posture. This fact came to light for the first time when the doctor was exam- ined in the Sessions Court and the witnesses in or- der to corroborate their testimony with the evidence of the doctor introduced this embellishment in the story of the assault on the deceased. Considered against this background, the argument of the learned counsel for the appellants that the evidence of the eyewitnesses was inconsistent with the med- ical evidence appears to be well founded. In other words, the position 5 is that if we discard this part of the evidence of the eyewitnesses which has come to light for the first time in the Sessions Court, then according to medical evidence, the deceased would have got two gunshots whereas it was never the prosecution case that Ram Narain Singh or any other accused fired a second shot at the deceased at any time. The medical evidence, therefore, clearly falsifies the prosecution case regarding the manner in which the deceased was hit." (emphasis sup- plied) 55 Counsel for the accused further submitted that there is an inconsistency between the ocular and medical evidence which will destroy the prosecution case, the benefit of which must go to defence. Reli- ance has been placed on Ram Narain Singh (supra) in which this Court has observed:
"14. Where the evidence of the witnesses for the prosecution is totally inconsistent with the medical evidence or the evidence of the ballistic expert, this is a most fundamental defect in the prosecution case and unless reasonably explained it is suffi- cient to discredit the entire case. In Mohinder Singh v. State, AIR 1953 SC 415, this Court observed in similar circumstances as follows:
"In a case where death is due to injuries or wounds caused by a lethal weapon, it has always been con- sidered to be the duty of the prosecution to prove by Page 17 of 37 Downloaded on : Mon Feb 15 09:14:01 IST 2021 R/CR.A/424/2020 IA ORDER expert evidence that it was likely or at least possible for the injuries to have been caused with the weapon with which and in the manner in which they are alleged to have been caused. It is elemen- tary that where the prosecution has a definite or positive case, it is doubtful whether the injuries which are attributed to the appellant were caused by a gun or by a rifle."
It is obvious that where the direct evidence is not supported by the expert evidence, then the evidence is wanting in the most material part of the prosecu- tion case and it would be difficult to convict the ac- cused on the basis of such evidence. While appreci- ating the evidence of the witnesses, the High Court does not appear to have considered this important aspect, but readily accepted the prosecution case without noticing that the evidence of the eyewit- nesses in the Court was a belated attempt to im- prove their testimony and bring the same in line with the doctor s evidence with a view to support an incorrect case."
56 Reliance has been placed as to inconsistency be- tween medical and ocular evidence by Counsel for accused on State of Haryana v. Ram Singh, 2002 (2) SCC 426 in which this Court has observed:
"1. While it is true that the post-mortem report by itself is not a substantive piece of evidence, but the evidence of the doctor conducting the postmortem can by no means be ascribed to be insignificant. The significance of the evidence of the doctor lies vis- - vis the injuries appearing on the body of the de- ceased person and likely use of the weapon therefor and it would then be the prosecutor s duty and ob- ligation to have the corroborative evidence available on record from the other prosecution witnesses. xxx xxx xxx
8. The principal contention raised in support of the appeal filed on behalf of the accused persons has Page 18 of 37 Downloaded on : Mon Feb 15 09:14:01 IST 2021 R/CR.A/424/2020 IA ORDER been that medical evidence as is available on rec- ord, completely demolished the prosecution case......"
57 In Ram Narain Singh (supra) the Court observed that the prosecution has to prove that injury was caused by the weapon in the manner as alleged. There is no dispute with the aforesaid proposition. However, the applicability of ratio has to be seen in the facts and circumstances of each case. In the in- stant case, the ocular evidence of PW-55 is not dis- credited by the medical evidence.
58 Even otherwise as submitted on behalf of the prosecution that in case of any discrepancy be- tween the ocular or medical evidence, the ocular ev- idence shall prevail, as observed in Yogesh Singh v. Mahabeer Singh & Ors., (2017) 11 SCC 195:
"43. The learned counsel appearing for the respond- ents has then tried to create a dent in the prosecu- tion story by pointing out inconsistencies between the ocular evidence and the medical evidence. How- ever, we are not persuaded with this submission since both the courts below have categorically ruled that the medical evidence was consistent with the ocular evidence and we can safely say that to that extent, it corroborated the direct evidence proffered by the eyewitnesses. We hold that there is no ma- terial discrepancy in the medical and ocular evi- dence and there is no 7 reason to interfere with the judgments of the courts below on this ground. In any event, it has been consistently held by this Court that the evidentiary value of medical evidence is only corroborative and not conclusive and, hence, in case of a conflict between oral evidence and med- ical evidence, the former is to be preferred unless the medical evidence completely rules out the oral evidence. [See Solanki Chimanbhai Ukabhai v. State of Gujarat, (1983) 2 SCC 174, Mani Ram v. State of Rajasthan, (1993) Supp. 3 SCC 18, State of U.P. v. Krishna Gopal, (1988) 4 SCC 302, State of Haryana v. Bhagirath, (1999) 5 SCC 96, Dhirajbhai Page 19 of 37 Downloaded on : Mon Feb 15 09:14:01 IST 2021 R/CR.A/424/2020 IA ORDER Gorakhbhai Nayak v. State of Gujarat, (2003) 9 SCC 322, Thaman Kumar v. State (UT of Chandigarh), (2003) 6 SCC 380, Krishnan v. State, (2003) 7 SCC 56, Khambam Raja Reddy v. Public Prosecutor, (2006) 11 SCC 239, State of U.P. v. Dinesh, (2009) 11 SCC 566, State of U.P. v. Hari Chand, (2009) 13 SCC 542, Abdul Sayeed v. State of M.P., (2010) 10 SCC 259 and Bhajan Singh v. State of Haryana, (2011) 7 SCC 421.]"
59 The ocular evidence to prevail has also been ob- served in Sunil Kundu & Anr. v. State of Jharkhand, (2013) 4 SCC 422 thus:
"24. In Kapildeo Mandal v. State of Bihar, (2008) 16 SCC 99, all the eyewitnesses had categorically stated that the deceased was injured by the use of firearm, whereas the medical evidence specifically indicated that no firearm injury was found on the deceased. This Court held that while appreciating variance between medical evidence and ocular evi- dence, oral evidence of eyewitnesses has to get pri- ority as medical evidence is basically opinionative. But, when the evidence of the eyewitnesses is to- tally inconsistent with the evidence given by the medical experts then evidence is appreciated in a different perspective by the courts. It was observed that when medical evidence specifically rules out the injury claimed to have been inflicted as per the eyewitnesses' version, then the court can draw ad- verse inference that the prosecution version is not trustworthy. This judgment is clearly attracted to the present case." (emphasis supplied)
60 Similarly, in Bastiram v. State of Rajasthan, (2014) 5 SCC 398, it was observed: "33. The ques- tion before us, therefore, is whether the "medical ev- idence" should be believed or whether the testimony of the eyewitnesses should be preferred? There is no doubt that ocular evidence should be accepted 8 unless it is completely negated by the medical evi- Page 20 of 37 Downloaded on : Mon Feb 15 09:14:01 IST 2021
R/CR.A/424/2020 IA ORDER dence. This principle has more recently been ac- cepted in Gangabhavani v. Rayapati Venkat Reddy, (2013) 15 SCC 298.
xxx xxx xxx
36. Similarly, a fact stated by a doctor in a post- mortem report could be rejected by a court relying on eyewitness testimony, though this would be quite infrequent. In Dayal Singh v. State of Ut- taranchal, (2012) 8 SCC 263, the post-mortem re- port and the oral testimony of the doctor who con- ducted that examination was that no internal or ex- ternal injuries were found on the body of the de- ceased. This Court rejected the "medical evidence"
and upheld the view of the trial court (and the High Court) that the testimony of the eyewitnesses sup-
ported by other evidence would prevail over the post-mortem report and testimony of the doctor. It was held: (SCC p. 286, para 41) "41. ... [T]he trial court has rightly ignored the delib- erate lapses of the investigating officer as well as the post-mortem report prepared by Dr. C.N. Tewari. The consistent statement of the eyewitnesses which were fully supported and corroborated by other wit- nesses, and the investigation of the crime, including recovery of lathis, inquest report, recovery of the pagri of one of the accused from the place of occur- rence, immediate lodging of FIR and the deceased succumbing to his injuries within a very short time, establish the case of the prosecution beyond rea- sonable doubt. These lapses on the part of PW 3 [doctor] and PW 6 [investigating officer] are a delib- erate attempt on their part to prepare reports and documents in a designedly defective manner which would have prejudiced the case of the prosecution and resulted in the acquittal of the accused, but for the correct approach of the trial court to do justice and ensure that the guilty did not go scot-free. The evidence of the eyewitness which was reliable and worthy of credence has justifiably been relied upon by the court."" (emphasis supplied)"
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17. The decision rendered in case of Mallikarjun Versus State Of Karnataka [2019 (8) SCC 359] also needs to be thoroughly looked into. Relevant paragraph of the same are reproduced as under: -
"20 The expert is not a witness of fact. Opinionative evidence of the doctor is primarily an evidence of opinion and not of fact. It is only a corroborative piece of evidence as to the possibility that the inju- ries could have been caused in the manner alleged by the prosecution. Unless the medical evidence rules out such possibility of injury being caused in the manner alleged by the prosecution version, the testimony of the eye witness cannot be doubted on the ground of its inconsistency with medical evi- dence. Though at one place, PW-12-doctor has stated that injury No.1 could not have been caused by MO-1- dagger, on being further questioned, he has stated that injury No.1 could have been caused by MO-1 either by attacking on the throat two or three times or by inflicting injury on the throat and twisting the weapon. Considering the evidence of PW-12- doctor, there is no merit in the contention as to the alleged variance between the medical evi- dence and the ocular evidence."
18. In case of Balvir Singh Versus State Of Madhya Pradesh [AIR 2019 SC 2983] the apex Court has on this issue of ocular versus medical evidence has held and observed thus: -
"21 Re: Contention - Inconsistency between the Medical Evidence and Oral Evidence In his evi- dence, PW-2 has stated that Harnam Singh fired shot at Mohan s face and PWs 3 and 13 stated that Page 22 of 37 Downloaded on : Mon Feb 15 09:14:01 IST 2021 R/CR.A/424/2020 IA ORDER Harnam Singh fired at the left eye of Mohan. As pointed out earlier, in his evidence, Dr. P.K. Jain (PW-9) stated that the cornea and remaining part of the left eye was completely missing and a bullet was found near the cerebellum. Gun powder was found present in the eyes of the deceased. PW-9 opined that the cause of death was due to damage of brain centre present in the skull due to injuries caused by the cartridge which resulted in stoppage of heart beat and respiration. As per the opinion of Dr. Jain (PW-9), death was caused mainly due to bullet hit in the brain. On being questioned, PW-9 stated that the fire was from a close distance as seen from the presence of gun powder in the left eye of the deceased. Dr. Jain has opined that since there were marks of gunshot around the left eye, the shot must have been fired from very close dis- tance of about one foot.
22 Contention of the appellant is that PW-2 in his evidence stated that Harnam Singh was about 1-2 yards away from deceased Mohan at the time when the bullet was fired. It was therefore contended that the contradictions regarding the distance from which the accused Harnam Singh fired at Mohan raises serious doubts about the prosecution case."Para 26/27 to be added
19. Reliance is also placed on the decision in case of Himanshu Mohan Rai Versus State Of Uttar Pradesh [2017 (4) SCC 161], where the Apex Court while dealing with the very issue has held thus: -
"16 In a different context, this Court in Gangabha- vani v. Rayapati Venkat Reddy and Ors, (2014) 1 ACR 147., Page 23 of 37 Downloaded on : Mon Feb 15 09:14:01 IST 2021 R/CR.A/424/2020 IA ORDER observed that in case there is a contradiction be- tween medical evidence and ocular evidence, the law is that though the ocular testimony of the eye witness has greater evidentiary value vis-a-vis medical evidence, where the medical evidence goes so far that it completely rules out all the possibility of the ocular evidence being true, the ocular evi- dence may be disbelieved. In the present case, the expert evidence to the effect that the empty car- tridges which were found on the spot were not fired from the weapon that was recovered, does not re- ally create a contradiction with the ocular evidence of P.W. 1 that the accused fired at the deceased with a gun and killed him. It so happens that the gun recovered by the police, turns out to be the gun that was not used. This creates no contradiction be- tween the evidence of P.W. 1 and the ballistics re- port though broadly it may amount to a contradic- tion in the prosecution case.
17 In this case, the ballistics report need not be re- jected as untrue; it simply states that the empty car- tridges found at the scene of the crime were not fired from the gun recovered from the accused. But this had no bearing on the credibility of the deposition of P.W. 1 that the accused shot the deceased with a gun, particularly as it is corroborated by the bullets in the body. In this case we find it safe to accept the evidence of Himanshu Mohan Rai and disregard the apparent contradictions. We might add that the fact that accused shot the deceased with a gun is also corroborated by the testimony of P.W. 2."
20. In case of Solanki Chimanbhai Ukabhai v. State of Gujarat [1983 (2) SCC 174], the Court held thus: -
"13. Ordinarily, the value of medical evidence is only corroborative. It proves that the injuries could have been caused in the manner alleged and noth- ing more. The use which the defence can make of Page 24 of 37 Downloaded on : Mon Feb 15 09:14:01 IST 2021 R/CR.A/424/2020 IA ORDER the medical evidence is to prove that the injuries could not possibly have been caused in the manner alleged and thereby discredit the eyewitnesses. Un- less, however the medical evidence in its turn goes so far that it completely rules out all possibilities whatsoever of injuries taking place in the manner alleged by eyewitnesses, the testimony of the eye- witnesses cannot be thrown out on the ground of alleged inconsistency between it and the medical evidence."
21. The reliance is also placed on the decision of the Apex Court rendered in case of State of Haryana v. Bhagirath [(1999) 5 SCC 96], where it is held that: -
"15. The opinion given by a medical witness need not be the last word on the subject. Such opinion shall be tested by the court. If the opinion is bereft of logic or objectivity, the court is not obliged to go by that opinion. After all opinion is what is formed in the mind of a person regarding a fact situation. If one doctor forms one opinion and another doctor forms a different opinion on the same facts it is open to the Judge to adopt the view which is more objec- tive or probable. Similarly, if the opinion given by one doctor is not consistent with probability the court has no liability to go by that opinion merely because it is said by the doctor. Of course, due weight must be given to opinions given by persons who are experts in the particular subject."
22. In case of Dhirajbhai Gorakhbhai Nayak v. State of Gujarat [(2003) 9 SCC 322], what has been held and observed is thus: -
Page 25 of 37 Downloaded on : Mon Feb 15 09:14:01 IST 2021
R/CR.A/424/2020 IA ORDER "8. Only in respect of Injury 1, there appears to be some confusion but that does not dilute the prose- cution evidence. It would be erroneous to accord un- due primacy to the hypothetical answers of medical witnesses to exclude the eyewitnesses' account, which has to be tested independently and not treated as "variable" keeping in view the medical evidence as "constant"
23. In case of Thaman Kumar v. State of U.T. of Chandigarh [(2003) 6 SCC 380], the Apex Court held thus:
-
"16. The conflict between oral testimony and medi- cal evidence can be of varied dimensions and shapes. There may be a case where there is total absence of injuries which are normally caused by a particular weapon. There is another category where though the injuries found on the victim are of the type which are possible by the weapon of assault, but the size and dimension of the injuries do not ex- actly tally with the size and dimension of the weapon. The third category can be where the inju- ries found on the victim are such which are normally caused by the weapon of assault but they are not found on that portion of the body where they are deposed to have been caused by the eyewitnesses. The same kind of inference cannot be drawn in the three categories of apparent conflict in oral and medical evidence enumerated above. In the first cat- egory it may legitimately be inferred that the oral evidence regarding assault having been made from a particular weapon is not truthful. However, in the second and third categories no such inference can straightaway be drawn. The manner and method of assault, the position of the victim, the resistance of- fered by him, the opportunity available to the wit- nesses to see the occurrence like their distance, presence of light and many other similar factors will Page 26 of 37 Downloaded on : Mon Feb 15 09:14:01 IST 2021 R/CR.A/424/2020 IA ORDER have to be taken into consideration in judging the reliability of ocular testimony."
24. The ocular evidence as can be seen from these decisions ordinarily shall prevail over the medical evidence unless the medical evidence specifically indicates that no injury was found on the deceased. While appreciating variance between medical evidence and ocular evidence, the oral evidence of the eye witnesses has been always given primacy over medical evidence which is basically opinionated, however, when the evidence of eye witness is totally inconsistent with the medical evidence given by the experts then evidence is appreciated in a different perspective by the Courts. If the medical evidence specifically rules out the injuries su to have been reflected, then the Court can draw adverse inference that the prosecution version is not trustworthy. It is a trite law that ocular evidence should be accepted unless it is completely negated by the medical evidence. The Court also cannot be oblivious of the decision of CBI vs. Mohd. Parvez Abdul Kayuum (supra) where the Court held that the contradiction between medical evidence and ocular evidence can be crystallised to the effect that though the ocular Page 27 of 37 Downloaded on : Mon Feb 15 09:14:01 IST 2021 R/CR.A/424/2020 IA ORDER testimony of the witness has grater evidentiary value visa-vis medial evidence, when medical evidence makes the ocular testimony improbable, that becomes a relevant factor in the process of the evaluation of evidence. However, if the medical evidence goes so far that it completely rules out all the possibility of ocular evidence being true, the ocular evidence may be disbelieved.
25. Learned Public Prosecutor Mr. Manan Mehta has relied upon following two authorities in support of his arguments: -
(i) Palani vs. State of Tamil Nadu [2018 SCC Online SC 2560]
(ii) Balvir Singh Versus State Of Madhya Pradesh [AIR 2019 SC 2983]
26. In case of Palani vs. State of Tamil Nadu [2018 SCC Online SC 2560], where the Apex Court has held that as per the alleged variance between the medical and ocular evidence, it is well settled that prima facie and medical evidence is basically opinionative. It at the best could say in what manner the injury could have been caused. The Apex Court has held that when the opinion given is inconsistent, the Page 28 of 37 Downloaded on : Mon Feb 15 09:14:01 IST 2021 R/CR.A/424/2020 IA ORDER Court cannot discard the credible direct evidence otherwise the administration of justice is to depend on the opinionative evidence of the medical expert. The medical jurisprudence is not an exact science with precision but merely opinionative. In the matter before the Apex Court it held that the contradiction pointed out between the oral and medical evidence are not so grave in nature that can prove fatal to the prosecution case.
14. As per the alleged variance between the medical and ocular evidence concerned, it is well-settled that oral ev- idence has to get primacy and the medical evidence is basically opinionative and that the medical evidence states that the injury could have been caused in the manner alleged and nothing more. The testimony of the eye witness cannot be thrown out on the ground of in- consistency. In State of Haryana v. Bhagirath and oth- ers (1999) 5 SCC 96, it was held as under:-
"15. The opinion given by a medical witness need not be the last word on the subject. Such an opinion shall be tested by the court. If the opinion is bereft of logic or objectivity, the court is not obliged to go by that opinion. After all opinion is what is formed in the mind of a per- son regarding a fact situation........." When the opinion given is not inconsistent with the probability of the case, the court cannot discard the credible direct evidence otherwise the administration of justice is to depend on the opinionative evidence of medical expert. The medical jurisprudence is not an exact science with precision; but merely opinionative. In the case in hand, the contradic- tions pointed out between the oral and medical evidence Page 29 of 37 Downloaded on : Mon Feb 15 09:14:01 IST 2021 R/CR.A/424/2020 IA ORDER are not so grave in nature that can prove fatal to the prosecution case.
27. In case of Machindra Versus Sajjan Galpha Rankhamb [2017 (0) AIJEL-SC 60082], where it was a case of murder where the death of the deceased was caused by stick and yoke pin. It was an appeal against the acquittal. The Court held that PW-3 eye witness to the incident has neither stated as to when accused came with alleged weapons nor he extended any help to deceased, rather he fled away from the spot as per his deposition, and came to know about death of deceased in evening. This peculiar fact of the case, according to the Apex Court, completely overrides the direct evidence rule, because ultimately probabilities creating doubts with respect to the cause and modus operandi of offence increases when alleged eye-witness flee away from the place of occurrence. Further the Court held that when the medical evidence is such that it does not give any clear opinion with respect to injuries inflicted on the body of victim or deceased, possibilities that injuries might have been caused by accused are also ruled out. such medical evidence is also very important in assessing the testimony of eye-witnesses and in Page 30 of 37 Downloaded on : Mon Feb 15 09:14:01 IST 2021 R/CR.A/424/2020 IA ORDER determining whether the testimony of eye-witnesses can be safely accepted. The Court held that unfortunately the man succumbed to the injuries but the substantial doubts confer a right upon accused to be held not guilty and accordingly, the acquittal was confirmed. The relevant findings and observations with regard to the medical evidence would deserve reproduction at this stage: -
"13 On perusal of the record, it has further been no- ticed by us that there was six days' delay in lodging the FIR which remained unexplained throughout the trial and in the appeal before the High Court. One last fact which is imperative and crucial to be men- tioned here is that opinion on the cause of injuries was neither mentioned by doctor PW-6 in his depo- sition, nor in post-mortem report. In criminal cases pertaining to offences against human body, medical evidence has decisive role to play. A medical wit- ness who performs a post-mortem examination is a witness of fact though he also gives an opinion on certain aspects of the case. This proposition of law has been stated by this Court in Smt. Nagindra Bala Mitraand Vs. Sunil Chandra Roy & Anr., 1960 SCR (3) 1, as follows:
"The value of a medical witness is not merely a check upon the testimony of eye witnesses; it is also independent testimony because it may establish certain facts quite apart from the other oral evi- dence. If a person is shot at a close range, the mark of tattooing found by the medical witness would draw that the range was small, quite apart from any other opinion of his. Similarly, fractures of bones, depth and size of the wounds would show the nature of the weapon used. It is wrong to say Page 31 of 37 Downloaded on : Mon Feb 15 09:14:01 IST 2021 R/CR.A/424/2020 IA ORDER that it is only opinion evidence; it is often direct evi- dence of the facts found upon the victim's person."
14 Further it was observed in the case of State of U.P. Vs. Krishna Gopal & Anr., (1988) 4 SCC 302, in the following words :
"24. It is trite that where the eye-witnesses' account is found credible and trustworthy, medical-opinion pointing to alternative possibilities is not accepted as conclusive. Witnesses, as Bentham said, are the eyes and ears of justice. Hence the importance and primacy of the orality of the trial process. Eye-wit- nesses' account would require a careful independ- ent assessment and evaluation for their credibility which should not be adversely prejudged making any other evidence, including medical evidence, as the sole touch-stone for the test of such credibility. The evidence must be tested for its inherent con- sistency and the inherent probability of the story; consistency with the account of other witnesses held to be credit- worthy; consistency with the un- disputed facts; the 'credit' of the witnesses; their performance in the witness-box; their power of ob- servation etc. Then the probative value of such evi- dence becomes eligible to be put into the scales for a cumulative evaluation."
15 But looking at the post-mortem report, cause of injuries was not stated nor was any opinion formed to create independent testimony. We would like to emphasize on the vital role played by opinion of the expert which is simply a conclusion drawn from a set of facts coming to his knowledge and observa- tion. Expert's opinion should be demonstrative and should be supported by convincing reasons. Court cannot be expected to surrender its own judgment and delegate its authority to a third person, how- ever great. If the report of an expert is slipshod, in- adequate or cryptic and information on similarities or dissimilarities is not available in the report of an expert then his opinion is of no value. Such opinions are often of no use to the court and often lead to the Page 32 of 37 Downloaded on : Mon Feb 15 09:14:01 IST 2021 R/CR.A/424/2020 IA ORDER breaking of very important links of prosecution evi- dence which are led for the purpose of prosecution. Therefore, we are of the considered opinion that the prosecution has failed to prove that death was caused due to the injuries inflicted by the recovered weapons."
28. It is quite clear from the evidence which has been read before us that there are eye witnesses who have spoken of the injuries sustained with the wooden log by the applicant to the deceased. Soon after the incident, he was taken to the Community Health Centre where he was declared dead. Both the eye witnesses have stood the test of cross examination. Post-mortem note also is reflective of the injuries caused on the chest of the deceased which also in the opinion of the expert has possible with the wooden log which has been recovered. However, what the medical evidence categorically opines that the injury reflected in the column no.17 being the injury on the chest is not the injury which can be said to have been sufficient to cause the death in the ordinary cause of nature. Thus, the post mortem doctor being a witness of facts he observed on the body of the deceased with keen and in- depth knowledge of science, his testimony is not merely opinionated evidence as conclusion drawn from his Page 33 of 37 Downloaded on : Mon Feb 15 09:14:01 IST 2021 R/CR.A/424/2020 IA ORDER observations and knowledge is substantiated by reasons and facts. At the best this leads to the state that the act of the applicant would result in causing injury to the person.
29. That being the case, at the stage of considering the request of suspension of sentence, reading of the evidence and its appreciation prima facie, it needs to be stated that even if the applicant is said to have inflicted the blow to the deceased, without questioning ocular evidence, in the instant case, on the aspect of death, the opinionative evidence being the medical evidence assumes a lot of importance and when regarded, this Court is of the opinion that the sentence deserves to the suspended till the appeal is proceeded with. The applicant is imprisoned for more than two years and the appeal on merit may take a long time. With the nature of evidence coupled with the medical evidence of penal doctor, with the stringent conditions, the applicant can be enlarged pending the appeal.
30. This application is accordingly allowed suspending the sentence of the applicant with the following conditions, till Page 34 of 37 Downloaded on : Mon Feb 15 09:14:01 IST 2021 R/CR.A/424/2020 IA ORDER the appeal is finally heard: The applicant shall
(a) Not take undue advantage of liberty or misuse liberty;
(b) Not act in a manner injurious to the interest of the prosecution and not contact any of the prosecuting witnesses;
(c) Surrender passport, if any, to the lower Court within a week;
(d) Not leave his district for two years and thereafter, Gujrat and India without prior permission of this court;
(e) Mark presence before the concerned police station initially on the 1st day of every English calendar month and after one year mark presence at the end of every two months and after two years, mark presence at the end of every quarter, between 11:00 am and 2:00 pm;
(f) Furnish the present address of residence to the Investigating Officer and also the Court at the time of execution of bond and shall not change the residence without prior permission of this Court;
(g) Shall execute the personal bond of Rs. 20,000/- (Rupees Page 35 of 37 Downloaded on : Mon Feb 15 09:14:01 IST 2021 R/CR.A/424/2020 IA ORDER Twenty Thousand Only) and furnish two sureties of the like amount before the jail authority concerned. 30.1. The authority will release the applicant only if not required in connection with any other offence for the time being.
30.2. If breach of any of the above conditions is committed, this order shall immediately be liable to be revisited for seeking quashment. Victims, if in the event of any difficulties created on the part of the applicant would require any protection, the prosecution shall attend to such request and do the needful on urgent basis for revisiting this order.
31. Registry is directed to send this order to the jail authority concerned through e-mode which, in turn, shall communicate the same to the person concerned.
(SONIA GOKANI, J)
(N.V.ANJARIA, J)
MISHRA AMIT V./Bhoomi
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R/CR.A/424/2020 IA ORDER
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