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In view of above, according to Mr. Thakkar, evidence of PW Bharatbhai, PW Rahul and/or PW Artiben in no way helps the prosecution in establishing the crime in question.

(iii) As per the evidence of P.W.5 Dr. Bhise who along with other doctors performed the post-mortem of the deceased Arvindbhai, the cause of death is the injury caused by a fire arm found on the right-side chest of the deceased. A bullet during the post-mortem examination, was taken out by the panel of doctors and details of the post-mortem notes need appreciation in the background of the opinion evidence of other expert Mr. Modi, Forensic Scientist who examined the bullet mark-F and the muddamal Revolver mark-J along with muddamal cartridges referred to in the evidence as K-1, K-2 & K-3. Mr. Thakkar has pointed out that as per the panel of doctors performing the post-mortem, they measured and noted the description of the bullet taken out of the body of the deceased and these details found in the post-mortem notes with pictures stating diameters etc., reveal that as per Dr. Bhise who proved the post-mortem notes, bullet was of O.5 cm which measurements were taken by a scale. There is no ambiguity in oral evidence of Dr. Bhise and the post-mortem notes produced. The measurement of the bullet injury found on the right side chest was also measured and measurement of entry wound of the bullet is shown to be of 0.5 cm. A piece of skin was taken out with a view to send it to FSL expert and Dr. Bhise has said in his deposition that the entry wound hole was of 0.5 cm. Meaning thereby equal to the diameter of the bullet found lying inside the body. Even as per the case of the prosecution, FSL expert had found one hit mark on the trunk of a tree at Shantivan Farm where the alleged crime has been committed and the diameter of the hit mark on the trunk of the tree was measured and it was found 2.00 cm x 0.5 cm. The evidence of Mr. Modi- Forensic Scientist, if considered, the bullet i.e. mark-F bullet received by him for examination allegedly taken out from the body of the person deceased was having a diameter of 0.775 cm. This conflict found in the evidence of two different sets of experts, has been relied on by the prosecution and the ld. Trial Judge, without recording any logical legal finding, has held that the prosecution has satisfactorily proved the case beyond reasonable doubt. On the contrary, it ought to have been held that the prosecution has made out two different stories. The FSL expert says that the deceased has been killed by a bullet having a diameter of 0.775 cm and the doctors who performed the post mortem say that the death was caused by a bullet of a diameter of 0.5 cm. According to Mr. Thakkar, as per the standard books, the bullet that was found by the team of the doctors, could be fired from 0.22 caliber Revolver whereas the FSL experts have deposed that the Revolver seized from the house of accused No. 1 was of 0.32 Caliber Revolver and from that Revolver, bullet mark-F could be fired. This conflict in the evidence makes the case of the prosecution doubtful. As per the settled legal position, when two sets of evidence which can be said to be inconsistent to each other are placed before the Court by the prosecution, than the court can not accept the one possible view i.e. one set of evidence by rejecting the other. The prosecution is supposed to convince the Court by offering viable explanation or the Court should reach to a positive finding that why it accepts one out of two sets of evidence. It is also necessary for the Court to say that two sets have been relied on by the prosecution can not be said to be inconsistent for the reasons and those reasons also should be mentioned by the trial Court and in the present case, the trial Court without entering into that exercise has held the accused guilty. In support of these arguments, Mr. Thakkar has placed reliance on certain observations made by the Apex Court in the case of Harchand Singh v. State of Haryana . He has taken us through relevant paras 9 & 10 of the decision. In the gist of arguments supplied to the Court, the ld. Counsel has reproduced paras 9 & 10 of the said decision and for the sake of convenience and brevity, the same are reproduced herein below:

In the post-mortem note, nine injuries were found on the body of the person deceased over and above the fatal injury caused by the bullet. There is evidence on record to show that the hostile witness PW-1 Gulamanabi exh.41 also had sustained injuries in the incident and he was sent for medical examination. So, the investigating agency has not planted him as witness. He was an employee of the deceased. However, he has not supported the case of the prosecution. It is surprising that none of the accused were sent for medical examination, but it is in evidence that the deceased was brought in the hospital by a group of persons and all the three who brought the deceased at Prerana Hospital, have been arraigned as accused after investigation. Self-defence is not a plea taken by the accused nor it is emerging from the record otherwise some injuries on the body of the person accused could have helped the accused. Bullet marks found on the trunk of the tree indicates occurrence of incident, but no bullet has been recovered either by the police or by FSL expert. It is not the say of the accused that any of these three accused is holding valid licence to carry a pistol through which 0.22 Bore bullet can be fired. The say of PW Artiben should not be discarded whereby she has said that her deceased husband had left for Shantivan Farm. The actual conversation that has taken place between Artiben and the deceased even if is considered to be inadmissible, but knowledge acquired by Artiben about the place for which her husband had left the house, should not be ignored.

32. This is a case where Ballistic Expert Mr. Modi was recalled by the Court Under Section 311 of CrPC vide order dated 24.04.2002 i.e. after the examination of 19 witnesses. In the same way, Dr. Bhise was also recalled and questions asked by Spl.PP and the cross-examination made by the defence counsel are too magnifying the point whether the bullet actually recovered from the body of the deceased was different than the muddamal bullet brought before the Court and examined by FSL and the Investigating Agency has attempted to create evidence by playing with the sample bullet that was seen by the doctor. Most of the questions asked to these two witnesses are found technical and both the experts have responded to these questions on the strength of their expertise and observations which both of them had made. There is nothing in evidence of police witnesses that when and where all the three witnesses were interrogated, but for the reasons best known to the Investigating Agency, three used cartridges viz. three caps of bullets and muddamal Revolver have been recovered separately and there is time gap which according to us, is more than reasonable when they were recovered and being seized at the instance of the wife of the convict. Surprisingly, the wife of the convict has never been examined by the prosecution and it is not even stated by the Investigating Officer that her statement was ever recorded. She was a competent witness and as mentioned earlier, at first instance, the Investigating Agency was not able to recover these very articles from the house of the convict accused. One of the probabilies is that at first instance, no reasonable and sincere efforts were made for seizure of these articles or they might have been brought subsequently and second probability is that by that time, these articles might be lying somewhere else than the residential premises from where it has been recovered at the instance of the wife of the convict accused. Both these probabilities are not able to help the convict because it is not the say of the accused that the muddamal seized does not belong to him and he was the only person who could have explained how three caps of used cartridges could be recovered. In absence of any evidence by the wife of the accused, it would not be either legal or proper for the Court to draw the inference that the police may have taken Revolver along with all live cartridges and after firing three shots from the Revolver to have corroboration to the prosecution version that was given by the prosecution witnesses, the police played a drama of recovery of the weapon from the house of the accused at the instance of the wife, because prior to the time of recovery of the weapon, it is the say of the prosecution that the muddamal bullet recovered from the body was already sealed. There is ample force in the submission of ld. APP Mr. KT Dave that the law of search and seizure would not apply qua the articles taken out of the body during the course of post-mortem. There are some other exceptional cases where the law of search and seizure as established by the Law with regard to search, seizure or recovery of muddamal articles or samples etc., would not be made applicable. So, the decisions cited in respect of the cases based on the N.D.P.S.Act or the cases of taking samples under The Drugs & Cosmetics Act or The Food Adulteration Act, would not apply to the present case. Of course, the ratio can positively help the accused of any criminal case wherein the Courts have said that the scope of tampering with the sample or sealed articles should be considered and the Court should rule out, if questioned, the possibility of such tampering. If the argument of ld. Sr.Counsel Mr. Thakkar is accepted that as no rules or directions as to how the muddamal articles/properties or incriminating material recovered from the body of the person deceased during the course of post-mortem are prescribed and therefore the recovery and sealing of the muddamal bullet produced before the Court should be held invalid recovery in the eyes of the law, in that event no reliance can be placed on such recovery. We are not in agreement with the submission that when it is settled that during the course of investigation any article or property is to be seized, then it should be seized under a panchanama and so, while seizing the muddamal bullet by the doctor if no panchanama is drawn, then it would not be safe to rely on the sealing process adopted by the panel of doctor because it can not be tested on the touch-stone of the truth for want of independent panchas. Taking out the articles from the body of the person deceased during the post-mortem is neither a recovery during the investigation nor recovery by the Investigating Agency. In stricto senso, the articles taken out from the body during the operation or post-mortem, are the doctor's property, but in medico-legal cases, these articles and properties are being regulated by law and in turn or otherwise these articles can be handed over to put the criminal law in motion or to help the machinery which has undertaken this exercise and in this process the muddamal bullet was given to the police by the panel of doctors and to attach sanctity to the genuineness of such recovery, the muddamal bullet was sealed with the seal of Forensic Medicine Department of VS Hospital. Thus, the recovery of the articles from the person of the deceased during operation or post-mortem, is a formal recovery and the same is not required to be recovered under a panchanama as contemplated under the law qua the recovery of articles during the course of investigation. If the argument of Mr. Thakkar is accepted, then it may touch large number of cases wherein the doctors are taking out number of things/articles/ properties viz. liquid from stomach, may be a liquor or poison, pieces of bird-skin and even the viscera sealed by the doctor on completion of post-mortem. Such recovery of articles, in such circumstances, are not required to be viewed with doubt merely because recovery of such articles are by the doctor as the procedure adopted by the doctor of sealing such articles always not in presence of panchas nor is under a formal panchanama. The same is simply recovery of articles from the person deceased and not the recovery of muddamal articles during the course of investigation by the Investigating Agency. Merely because, in the present case, the accused had raised one point of tampering with muddamal article bullet, it is not possible for us to say that the recovery of articles from the body or from the body of the person deceased during autopsy/post mortem, being not in presence of panch witness or not under any formal panchanama, should be viewed with suspicion and no reliance should be placed on the evidence given by the doctor about sealing of the article before handing over to the police for further analysis. It has come in evidence that the deceased, his brother i.e. accused No. 2 and convict accused NO.1 had notionally separated the properties as well as family business was divided amongst these three main persons of the family. A fact alleged by the prosecution is that the muddamal Revolver and three caps of used cartridges have been recovered from the residence of the convict accused. There is nothing on record which can be said to be of cogent piece of evidence to show that accused Nos. 2 & 3 or any one of them were jointly occupying the residential bungalow of accused No. 1. So, these two muddamal articles have been recovered at the instance of accused No. 1's wife and from the house of accused No. 1. The doubt focused by Mr. Thakkar is based on more than one aspect, but one of these aspects is with reference to the description of bullet given in the forwarding note sent by the police to FSL. If the bullet was actually sealed at the time of post mortem and the seal has reached to FSL, then how the Investigating Agency could come to know about the size of the bullet while preparing the forwarding letter to FSL? The submission that the prosecution has failed to prove beyond reasonable doubt that the deceased died because of bullet fired from the muddamal Revolver and the bullet allegedly recovered from the body of the deceased has not been brought before the Court and it is submitted that the Investigating Agency has not even cared to trace out the weapon and other live cartridges if they are there keeping notes made by the panel of doctors in the post mortem notes, should be given any weightage, is the question. To cut short the investigation or with a view to prejudice the prosecution and the complainant, whether the Investigating Agency adopted a short cut to link the accused No. 1 with the crime by replacing the bullet and muddamal Revolver whether is one of the possibilities, is the question. The mistake committed by the Investigating Agency due to sheer negligence or with ulterior motive, have been scrutinized by the Courts of our country and it is being experienced by the Court now a days that the search for truth mainly remains in the hands of Investigating Agency and then to some extent with the prosecuting agency. It appears from the evidence that true attempt perhaps was made by the FSL as there was no requisition by the Investigating Agency to find out the blood group on the muddamal bullet sent for examination to FSL. It is neither the evidence of Mr. Modi nor any document is found from the record under which it can be said that the muddamal bullet was ever sent to serological section of FSL to trace out the blood components if they are there on the bullet. So, it would not be possible for the Court to jump to any positive or negative conclusion that the bullet sealed by the doctor had not reached to FSL for examination and somebody had tampered with the muddamal bullet. An attempt to trace out the blood from the muddamal bullet, according to us, would have added some more strength and the lacunas left by the Investigating Agency and the prosecution while producing the evidence before the trial Court, are not found in any way advantageous to the convict accused because the opinion of the Ballistic Expert categorically sates that the muddamal bullet is a bullet which must have been fired from the muddamal Revolver. The opinion expressed after examining the weapon as well as the caps of used cartridges of muddamal bullet with the test fired articles taken up for comparison from various angles including by using Comparison microscope. Though there is no clear mention of individual characteristic , but the expert has clarified that while expressing the opinion, the muddamal bullet and test fire bullets were compared class characteristic-wise and individual characteristic were also examined. It is rightly said by this expert that while doing comparison, the similarity as well as dissimilarity both are focussed and in the present case, no need had cropped up to notice dis-similarity and, therefore, there was no need to overlook the element of dissimilarity found. It appears from the evidence that the class characteristics were examined in detail and there is detailed cross-examination on this aspect of PW.4 Mr. Modi in paras 13, 14 & 15 of the cross-examination of the witness made on 04.05.2002 by the learned defence counsel. It is true that the evidence given by Mr. Modi- Ballistic Expert, is after all an opinion evidence and that by itself the opinion evidence should not be given weightage more than required, is the settled legal position. In appreciating the evidence led by the prosecution, the efforts made by the expert and finding recorded at the end of analysis- examination, if are useful to the Court in finding out the truth, then such opinion evidence automatically assumes great importance. Though the panchas of recovery of muddamal Revolver and used cartridges have not fully supported the case of the prosecution, when the ownership of the muddamal weapon is not a matter of dispute and the place from which it is recovered and the person who handed over these muddamal articles to police in recovery operation is not in dispute, planting of these muddamal articles to implicate the accused, is ruled out and the very muddamal was compared by the expert Mr. Modi and he has recorded the finding that the bullet mark 'F' possibly was fired from the muddamal Revolver of Accused No. 1. At one point of time, after re-calling of Mr. Modi, an attempt was made from the defence side to allege that some writings have been added in the worksheet prepared by this expert and that too after recording of his evidence during the trial on earlier occasion. Our attention was drawn to the said writings allegedly inserted subsequently in column No. 1. We have carefully perused the original worksheet brought by this witness and tendered in evidence and there is no breach in the sequence and we are not convinced with the suggestion made to this witness that he, with a view to help the prosecution or otherwise, had added something in the original worksheet. On the contrary, the worksheet tendered in evidence has made the evidence of Mr. Modi more trustworthy and discloses the meticulousness that he must have followed at the time of carrying out the examination-analysis of muddamal articles sent to him in Ballistic Department of FSL. It was not suggested to this witness either by the prosecution or by the defence counsel that he had noticed any presence of the blood when the bullet was placed at comparison microscope. The defence of replacement of the bullet was brought for the first time before the Court during the course of cross-examination of the expert Mr. Modi and while making the suggestions to Dr.Bhise. So, after the examination of number of witnesses or in the midst of the trial, whether the bullet could have been sent for serological examination by the ld. Presiding Judge of the Court ? is the question and our answer obviously is in the negative because the Court should not try to assume the role of Investigating Agency and any evidence either positive or negative possibly should be viewed with a great doubt. In such a situation, according to us, the prosecution has satisfactorily established one fact that the muddamal bullet taken out from the body was sealed by the responsible panel of doctors and that has reached in a sealed condition with a specimen seal to FSL and ultimately it is found by the expert that the bullet possibly was fired from the muddamal Revolver and three used cartridges are also the cartridges fired from the very muddamal Revolver. The lethargy or negligence on the part of the Investigating Agency is also emerging because it was possible for the agency to trace out the purchase of ammunition under the licence and use of each cartridges by the licence holder i.e. convict accused during interrogation and liking evidence could have been collected from the authorized dealer because the each licence holder of a fire arm is supposed to explain the account on asking by the competent authority as to the purchase and use of each cartridge.

33. The conflict or confusion that has come on record, if considered,is mainly on account of the description of the bullet given by doctor in the post mortm notes and the answers given by Dr. Bhise in the cross-examination as to the measurement of the bullet taken out by the panel of doctors after taking out the same from the body of the deceased. Nothing has come on record through any of these two experts viz. Dr. Bhise and Mr. Modi that whether any bullet of the measurement shown in the post mortem note, if fired through 0.22 Calliber Revolver or Pistol, could travel within the body of a healthy able-bodied man as found in the present case while performing the post-mortem. The details are given herein above that from where the bullet was taken out from the body of the deceased Arvindbhai and the areas through which it reached to the place from where it was found lying in the body and taken out. In the same way, it is also not in evidence of these two witnesses that a bullet which can be fired from muddamal Revolver from a short range would cause exit wound or not. So, when it is the case of the prosecution that the deceased succumbed to the injuries caused by the use of muddamal fire arm and that too by the bullet mark 'F' and the defence plea is that by misusing the licence and weapon of convict accused, the Investigating Agency by tempering with muddamal bullet had implicated the accused falsely in the crime and there is no evidence of cogent nature that the incident had ever occurred in the farm or at the border of the farm divided amongst the deceased and accused No. 1 and visit of convict accused at Prerana Hospital even if it is held to be proved by satisfactory evidence, that circumstance would not go against the accused because he being a father, might have gone visited immediately on receipt of the information of causing of grave injury to his son. Deceased Arvindbhai was not his enemy. For the sake of arguments it is accepted that the deceased Arvindbhai had developed some inimical feelings and both the deceased and convict accused had equal ill-feelings on the issue of division of the properties, then also, the presence of the convict accused in Prerana Hospital can not be said to be inconsistent to his innocence. We are not convinced with the backbone of the defence theory while appreciating the strength of the case of the prosecution that unless the Court is able to accept that as Amrutbhai- convict accused was there in Prerana Hospital when complainant Artiben had seen him in Prerana Hospital with her two brother-in-laws, one younger brother and another the husband of her sister-in-law, she might have decided to implicate accused No. 1 in the crime on account of ill-feeling or any other grievance like her deceased husband had against convict accused, she might have named the convict as an accused to the police officer on presumption or assumption that nobody else than the convict could have caused this injury because he is the person with whom the dispute had cropped up on the decision of the convict accused to erect the dividing wall between two parcels of land of Shantivan Farm divided along with family business amongst them and the police thereafter to substantiate the complaint and without resorting to the real culprits, arraigned all the three persons as an accused. The police might have considered number of injuries other than the bullet injuries found on the body of deceased Arvindbhai. But as discussed earlier, the evidence as to the presence of all the three accused including the convict accused at Prerana Hospital is not found a mere presence. There is sufficient evidence of convincing nature that the deceased was brought in the red colour maruti car belonging to the accused persons. Thereafter, the convict accused was also seen in Prerana Hospital in couple of minutes by PW Artiben and two other prosecution witnesses namely father and brother of PW Artiben. The presence of the convict accused in Prerana Hospital is corroborated by the police witness also as he was taken from Prerana Hospital to Karnavati Hospital under a police escort. In this background of the evidence given by PW Artiben and other witnesses and the conduct of the convict accused thereafter, leaving the dead body of his own young son and in surreptitious manner under the pretext of some old ailment and getting admitted in a hospital at a distance, if considered, then the description given by the panel of doctors as to the measurements of bullet being opinion evidence, is not required to be given any weightage. According to us, he ballistic expert who had examined the bullet and opined as to its nature, size and possibility of it's fire through the muddamal weapon, of course is a opinion evidence. The expert witness, as per the settled legal position, can be divided in different classes and they can be divided in to two different categories. The first category of such witnesses are those who have some personal knowledge of the fact and the second category is of those who have no such personal knowledge in the subject. Mr. Modi is examined and his evidence has been viewed by the ld. Trial Judge as a corroborative piece of evidence. So, the panel of doctors can not be equated with Mr. Modi who is an expert in the subject so far as the fire arm and ammunition is concerned. Dr. Bhise was called and examined as an expert to assist the Court, is not a witness of fact and his evidence as Forensic Science Expert and Medical Officer is really of an advisory character given on the basis of the symptoms found on examination as to the nature of injuries found on the body of the person deceased while performing autopsy, as to the time of death and cause of the death. It is expected that the expert witness puts all the material inclusive of the data which induced him to come to a conclusion regarding the symptoms found and the cause of death recorded in post mortem notes. It has become a matter of common observation that not only the honest opinion of different experts be obtained upon the opposite side of the same question, but when two honest looking opinion of different experts are placed before the Court, then the Courts are supposed to draw a distinction between the two. It is true that one of the backbone of the arguments of Mr. Thakkar is that the details given by the panel of doctors in post-mortem notes regarding the measurement of bullet by drawing picture and that too by using the scale, is the data and conflicts of data of two experts brought on record has created a shadow of doubt and, therefore, the finding of the trial Court should be reversed saying that the deceased might not have succumbed to the injuries caused by bullet fired from the muddamal Revolver and it may be by other weapon and other bullet. But when it comes to circumstantial evidence, the Court is supposed to see the totality and collective impact of the circumstance emerging from the evidence led by the prosecution. In the background of the opinion evidence given by Dr. Bhise and Mr. Modi vis-a-vis the documents proved by them, the Court shall have to draw a distinction, if possible, qua the conflict as to the measurements of bullet as significant. According to us, the opinion expressed by Mr. Modi is based on scientific facts and it is not a matter of mere opinion because he is the person expert in the subject and when he was asked to bring the examination- worksheet, he had strengthened his trustworthiness by bringing it and proving it to the satisfaction of the Court. So far as the measurements of bullet in post mortem notes shown by the Doctor are concerned, in our opinion, the same is a matter of opinion on observation. As medical expert, the opinion of Dr.Bhise through which he has established certain medical facts, can not be said to be a mere matter of opinion. On certain facts as stated by Dr. Bhise, any other medical expert would hardly dis-agree. But in a province of mere opinion, it is experienced by our Courts that the experts differ widely amongst themselves. The exercise of taking measurement of bullet or classifying it during the course of performance of the post-mortem, would fall in the area of mere opinion. At the bottom of page-6 of the post-mortem note, there is a column wherein panel of doctors were supposed to quote number of bullets and it was not required to draw a sketch of a bullet in the margin though there is reference of exact measurement of bullet in the notes (A),(B) & (C) mentioned in this column of additional remarks. According to us, the opinion of the panel of doctors that the range of firing 'seems to be within a close range of more than one foot' as evident from the post-mortem notes, is an expert opinion as Medical Officer and Forensic Medicine Expert, but in absence of opinion which can be said to be convincing and to the satisfaction of the Court that the muddamal bullet mark 'F' could not have been entered into the body of the person deceased through the wound, the opinion of Mr. Modi is found to be more objective on the issue. Therefore, on this count, we are of the view that in the present case, the prosecution has satisfactorily established beyond doubt that the deceased had succumbed to the injuries by the muddamal article bullet mark 'F' and that bullet possibly was fired from the muddamal weapon viz. Revolver recovered from the residence of convict accused at the instance of the wife of the convict accused. The ld. Trial Judge has rightly considered the point of identity of muddamal weapon keeping in mind the details mentioned in the licence to hold the fire arm and the number of fire arm.