The need for reliable evidence and the importance of addressing discrepancies in witness testimony and medical records to ensure a fair trial and prevent wrongful convictions.

JUDGMENT :

A.S. SUPEHIA, J.

1. The present Appeal is taken up in view of the order passed by the Supreme Court dated 1st August 2023 in Criminal Appeal No. 2296 of 2023, whereby the Supreme Court has directed this Court to hear the captioned Criminal Appeal as far as possible preferably within a period of six months.

2. The occasion for the present appellants to approach the Supreme Court was the judgment and order dated 17th March 2016 passed in Criminal Appeal No. 2488 of 2008 and captioned Criminal Appeal No. 2186 of 2008, wherein and whereby a Coordinate Bench of this Court had confirmed the conviction of the present appellants recorded by the trial court convicting them for the offence punishable under Section 325 of the Indian Penal Code and sentencing them for three years and a fine of Rs. 100.00.

3. By the said judgment and order, the conviction recorded by the trial court in case of accused no. 7 under the provisions of Section 302 of the Indian Penal Code has been modified to that of under Section 304 Part (I) of the IPC and he was sentenced for 10 years rigorous imprisonment. The same was also challenged before the Supreme Court.

4. The matter is remitted by the Supreme Court vide order dated 1st August 2023 since the present appellants had assailed their confirmation of conviction as recorded by the trial court for the offence punishable under Section 325 of the IPC and sentencing them for three years imprisonment.

5. At the outset, learned advocate Mr. Nasir Saiyed, appearing for the appellants who are original accused nos. 2, 3 and 4, has submitted that the entire case of the prosecution is premised on the injuries suffered by the brother of the complainant (PW-6) Abhesinh Devuji Thakore (Exh.64). It is submitted that the trial court has acquitted the present appellants for the other offences by giving them benefit of doubt. Learned advocate Mr. Saiyed, while inviting the attention of this Court to the evidence of Abhesinh Devuji Thakore (PW-6) at Exh.64, has submitted that in fact he cannot be termed as a reliable witness since in his deposition he has admitted that after the date of the incident he remained unconscious for three days, whereas in the history recorded by the doctor at Exh.45, the medical certificate mentions that he was fully conscious and he has stated that he would give the names of the accused in his police complaint. So far as the other injured witness Gopalsang Devuji Thakore (PW-4) is concerned, he has invited the attention to certificate at Exh.46, in which only the name of accused no. 7 is mentioned and not the present accused.

6. Learned advocate Mr. Saiyed has also submitted that as per the charge Exh.30, it is the case of the prosecution that the present appellant-accused no. 2 Thakore Amratji @ Tinaji Jaswantji @ Jalaji had inflicted stick blows on the injured witness Baldevji Virsinghji, however, he has not been examined as a witness. The charge also reveals that the accused no. 3 Thakore Chenaji Gambhirji had inflicted stick blows on the PW-6 Abhesinh Devuji Thakore, whereas, the accused no. 4 Thakore Ramjiji @ Bodo Khodaji had inflicted injuries on the PW-4 Gopalsang Devuji Thakore.

7. It is submitted that the trial court has recorded the conviction under the provisions of Section 325 of the IPC only on the alleged assault by the present appellants – original accused nos. 2, 3 and 4 on the injured witness PW-6 Abhesinh Devuji Thakore, which appears to be contrary to the evidence.

8. Learned advocate Mr. Saiyed has submitted that the trial court having acquitted all the appellants for the offences punishable under Sections 147, 148, 149, 302, 326, 324, 323, 504 and 506(2) of the IPC, then even the presence of the present appellants at the scene of offence could be said to be doubtful. Finally, it is submitted by learned advocate Mr. Saiyed that even looking to the injury certificates issued by the doctors as well as the evidence of the doctors, it is manifest that the role attributed to the