1996 Supreme(Guj) 371

Gujarat High Court
Judgename :H.R.Shelat, SHARAD D.DAVE
NANDUBEN GOBARBHAI - Appellant
Versus
STATE - Respondent
CRIMINAL APPEAL 854 of 1991
Decided On : 08/06/1996

Headnote:(a) Evidence Act, 1872 - Sec. 45 - Evidence of expert opinion - Nature of - It has only corroborative value and important only when Court finds compelling necessity to look for corroborative evidence.

       The evidence of the expert or his report/opinion takes the shape of being the opinion evidence and not the decisive factor, and so it has a corroborative value, with the result it can help the Court in assessing the direct evidence and drawing unerring conclusions. But before acting upon such opinion/report being a piece of evidence, it is usual to see whether it is corroborated by direct or substantial evidence or other pieces of evidence as expertise is not conclusive and not binding on Court. It, therefore, cannot outweigh and prevail over the direct testimony or take place of direct and substantive evidence which is certainly appealing, credible, cogent, free from doubt or other infirmities. The experts opinion or report can be relied upon for corroboration if it appears to be trustworthy, honest, impartial, conclusive, full and complete or omnipotent, and not perfunctory in nature, and helps the Court in reaching a true and positive conclusion, or if need arises provides technical assistance to the Court in appreciating direct evidence. If there is a reason to believe about the possibility other way round or leaves the Court in lurch, the same should be kept out of consideration; the Court should in that case consider direct and other evidence on record so as to find out the truth and determine the issue in question. If in that case the direct evidence is found credible, cogent, satisfactory, appealing leaving no room to doubt and inspiring confidence without any inherent improbabilities, the same can be relied upon and the Court can draw the conclusion which is logically permissible therefrom inspite of the fact that the expert report/opinion and/or evidence is wanting or is required to be kept aside, for the absence of expert evidence/report cannot in all cases damage prosecutions case or deter the Court from determining/adjudicating the case on the basis of sufficiently reliable direct evidence available on record, establishing the charge beyond reasonable doubt. In short, it gains importance only when after perusal of direct and substantive evidence on record the Court finds compelling reason necessitating looking for corroboration for being doubtly sure i.e., as sure as eggs is eggs but of course, it is as stated above full and complete and honest etc.

       [Para 14]

       (b) Criminal Trial - Recording statement of accused - Accused charges for offences under Secs. 147, 148, 149 & 302 but no question put to her for her joining unlawful assembly with common object of murder - She having been deprived to explain, could not be convicted for alleged offence of unlawful assembly & murder - Accused was merely carrying a stick whereas death was occassioned by fatal injuries inflicted by other accused - So far as individual role is concerned she could be charged for offence under Sec. 323 & no other.

       She has been asked no question whatsoever qua unlawful assembly. As no question whatsoever and in whatever form is put to `N about her joinder of unlawful assembly knowing well about the common object while recording the statement under Sec. 313 of the Criminal Procedure Code, and thereby opportunity to explain is not given to her, the omission would result in grave prejudice and would certainly have a vitiating effect on her conviction under Secs. 147, 148 & Sec. 302 read with Sec. 149, IP Code. Her conviction, therefore, cannot be maintained under Sec. 147, 148 and 302 read with Sec. 149. Under the circumstances, her individual role has to be ascertained. From the above stated evidence, it can well be said that she gave stick blows to deceased `M and caused C.L.W. The doctors has opined that `M died because of the other fatal injuries he found and not by CLW although the same was found on the middle of the parietal region. In this case, therefore, `N can be said to have voluntarily caused hurt by a stick blow for which she can be said to have committed the offence punishable under Sec. 323, Indian Penal Code and not under any other Section alleged by the prosecution.

       [Para 12]

       (c) Criminal Procedure Code, 1973 - Sec. 313 - Examination of accused - Material circumstance appearing against him not put to him - Such circumstance shall have to be completely excluded from consideration - However it shall be different if circumstance was otherwise understood by accused & put in cross- examination of witnesses - Accused was not specifically asked about recovery of stick with blood mark from her house although she was asked about Panchnama by which recovery was effected - No prejudice caused to accused and inadequate examination of accused not fatal to prosecution.

       A perusal of Sec. 313 also reveals, that if the question in detail is not asked it should be shown that such examination has materially prejudiced the accused because want of adequate examination does not vitiate the trial. When Advocate is there to represent the accused, inadequate examination cannot be made a ground for setting aside conviction. In short, under Sec. 313 of the Criminal Procedure Code, it is the duty of the Court to put up necessary questions to the accused on material circumstances appearing against him and if that is not done, it would be a serious irregularlity and that circumstance has to be completely excluded from consideration, the Court has then to consider other circumstances and material on record and determine the issue. If the examination under Sec. 313 is not adequate, but there is no point causing puzzle and the accused has well understood the circumstances and has also dealt with the same while cross-examining the witnesses with the assistance of his Advocate, inadequate examination would never be fatal to the prosecution.

       [Para 10]

       (d) Criminal Trial - Right of private defence - Burden of proof & scope of - Stated - Indian Penal Code, 1860 - Secs. 96 to 106.

       The law provides certain exceptions exonerating the wrong-doer. One of such exceptions is a private defence. Vide Secs. 96 to 106. Indian Penal Code, necessary provisions for the exercise of private defence are made. What can be deduced from these provisions is that the law has conferred that right on the person facing imminent danger to his person or property, or has a reason to believe because of the act of the opposite party about the apprehension of his death or grievous hurt. The provision is made because the person facing the imminent danger to his person or property is not expected to be a coward, and yield or succumb to the attack or threat or force, and suffer injury to his person or damage to the property, or run away from the spot. He has a right to defend exercising to the extent necessary required force by a counter-attack to ward off the danger of being attacked or put the threat or danger to rout. It is, therefore, open to the accused to set up a plea of self-defence. If he takes up the plea, burden to prove the same in view of Sec. 105 of the Indian Evidence Act, 1872 is on him, but only after prosecution discharges its initial burden establishing his complicity. But onus which rests on him is not as strict and heavy as the standard of proof which lies on the prosecution to establish the charge beyond reasonable doubt. It is enough if he establishes the facts which stand the test of preponderance of probabilities making his plea acceptable. It is, however, not necessary that the case of self-defence should specifically be pleaded and the accused should adduce the evidence to establish the same. He can rely on and derive advantage from the facts and materials brought out on record, because if the task of proving the exception has already been performed by the prosecution for the accused, there is no necessity for the accused to do it all over again. In that case, it is open to the Court if on a proper appraisal of the evidence it comes to the conclusion that the injury caused by accused was inflicted at a time he was having reasonable apprehension of grievous injury being caused to him by the deceased to give him the benefit of doubt. In view of such law, it is open to the appellants to advance his case of self-defence if that is emerging from the evidence on record.

       [Para 18]