Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2021 Supreme(SC) 382

SUPREME COURT OF INDIA
Navin Sinha, R. Subhash Reddy, JJ.
Pruthiviraj Jayantibhai Vanol – Appellant
Versus
Dinesh Dayabhai Vala and Others – Respondents
Criminal Appeal No. 177 of 2014
Decided On : 26-07-2021

Advocates appeared:
For the Appellant(s) :Madhu Suri, Shikhil Suri, Advocates
For the Respondent(s):Kanwaljit Kochar, Rahul Gupta, Samrat Jasra, Advocates

IMPORTANT POINTS
(1) Eye sight capacity of those who live in rural areas is far better than compared to town folks. Identification at night between known persons is acknowledged to be possible by voice, silhouette, shadow, and gait also.
(2) Ocular evidence is considered best evidence unless there are reasons to doubt it.

Headnote:
(A) Indian Penal Code, 1860 – Sections 302, 34, 120B – Bombay Police Act, 1956 – Section 135(1) – Murder and conspiracy – Common intention – Acquittal by High Court – Credibility of eye witness has not been doubted by High Court – Respondents were not strangers, but well known to eye witness and deceased – There is evidence about availability of light near place of occurrence – Even otherwise, that there may not have been any source of light is hardly considered relevant in view of fact that parties were known to each other from earlier – Eye sight capacity of those who live in rural areas is far better than compared to town folks – Identification at night between known persons is acknowledged to be possible by voice, silhouette, shadow, and gait also – Another eye-witness is an independent witness – Neither has his presence been doubted nor his impartiality been suspected – Assailants ran away throwing weapons of assault at place of occurrence – Evidence of eye-witnesses is mutually corroborative – Medical evidence is consistent with prosecution story – Recovery of weapons of assault from place of occurrence stands established from t evidence of PWs who had not denied their signatures on seizure memo and neither have they said that they were coerced into signing seizure memo – Cumulatively, in view of nature of evidence available, absence of any FSL report with regard to finger prints on seized weapons is considered irrelevant – There is no inconsistency between ocular and medical evidence – Acquittal by High Court is based on misappreciation of evidence and overlooking of relevant evidence thereby arriving at a wrong conclusion – It is not a case where two views are possible or credibility of witnesses is in doubt – Neither is it a case of a solitary uncorroborated witness – Conclusion of High Court held to be perverse and irrational – Acquittal held to be unsustainable and set aside – In nature of assault, Section 304 Part II, IPC has no application – Conviction of respondent nos. 1 to 4 by Trial Court restored. (Paras 10, 11, 12, 14, 15, 16, 17 and 18)
(B) Criminal Law – Appreciation of evidence – Ocular evidence is considered best evidence unless there are reasons to doubt it – It is only in a case where there is gross contradiction between medical evidence and oral evidence, and medical evidence makes ocular testimony improbable and rules out all possibility of ocular evidence being true, ocular evidence may be disbelieved. (Para 17)
Facts of the case:
Instant appeal arises from an order of acquittal, reversing conviction of respondents 1 to 4 under Sections 302, 34, 120B of the Indian Penal Code (IPC) sentencing them to life imprisonment and fifteen days imprisonment under Section 135(1) of the Bombay Police Act. Acquittal is premised on the reasoning that the evidence of the eyewitnesses PW2 and PW10, is inconsistent with the medical evidence, regarding nature of injuries vis-à-vis weapons of offence.
Findings of Court:
The respondent nos. 1 to 3 are directed to surrender within two weeks to serve out the remaining period of their sentence. The Director General of Police, State of Gujarat shall take all necessary steps to apprehend the absconding, fourth accused and bring him to justice. A report shall be submitted to this Court in this regard within a period of 8 weeks when present matter shall be listed for that limited purpose.
Result : Appeal allowed.

JUDGMENT :

Navin Sinha, J.

This appeal arises from an order of acquittal, reversing the conviction of respondents 1 to 4 under Sections 302, 34, 120B of the Indian Penal Code (IPC) sentencing them to life imprisonment and fifteen days imprisonment under Section 135(1) of the Bombay Police Act.

2. The deceased was assaulted on 01.10.2003 at 2:30 am while he was returning on a motorcycle along with PW-2 who was the pillion rider. The respondents are said to have assaulted with iron pipe, steel rod and stick, causing three stab wounds and nine incised wounds. The acquittal is premised on the reasoning that the evidence of the eyewitnesses PW-2 and PW-10, is inconsistent with the medical evidence, regarding the nature of injuries vis-à-vis the weapons of offence.

3. Shri Shikhil Suri, the learned amicus curie appearing on behalf of the appellant submitted that the First Information Report was lodged promptly at 5:15 am the same day by PW-2 naming the four respondents. The deceased, PW-2, and the four respondents were well known to each other from earlier. Relations between them had soured, leading to the occurrence. PW-12 had deposed that the respondents had threatened the deceased earlier also. The deposition of PW-2 is corroborated by an independent witness, PW-10 the security guard of the bungalow near which the occurrence took place. There were street lights near the place of occurrence.

4. The deceased was brought to the hospital emergency ward by PW-2 at 2:45 am, with serious injuries and expired at 8:00 am, as deposed by the Doctor PW-14. The witness deposed that Dr. Vishwamitra, whose signatures he identified, had noted that the injuries to the deceased were caused by sharp weapons.

5. The postmortem report, as deposed by the Doctor PW-1, revealed three stab wounds and nine incised injuries. Injuries 1 to 4 which were on the head, were sufficient to cause death. The witness deposed that the iron rod used for assault had a turned sharp edge which could cause incised injuries. The stab wounds were possible by a sharp instrument.

6. It was submitted that there was no inconsistency between the ocular and medical evidence. The High Court erred in the appreciation of evidence by failing to take not that the iron rod had a sharp edge by which the injuries on the deceased were possible. It is only if the medical evidence was totally inconsistent with the ocular evidence, the former was to be given precedence. Reliance was placed on Solanki Chimanbhai Ukabhai vs. State of Gujarat, 1983 (2) SCC 174 and State of U.P. vs. Krishna Gopal and Another, 1988 (4) SCC 302 and Baleshwar Mahto vs. State of Bihar, 2017 (3) SCC 152.

7. Shri Kanwaljit Kochar, learned counsel appearing on behalf of the first three respondents, the fourth one absconding till date, relying on Ramesh Babulal Doshi vs. State of Gujarat, 1996 (9) SCC 225, Dhanna vs. State of M.P. with Kanhiyalal and another vs. State of M.P., 1996(10) SCC 79, and Ghurey Lal vs. State of Uttar Pradesh, 2008(10) SCC 450, submitted that in an appeal against acquittal if two views are possible, the benefit of doubt should be given to the accused. It was submitted that stab and incised injuries were not possible by a steel rod or iron pipe. The genesis of the occurrence was therefore itself in doubt. The acquittal by High Court therefore calls for no interference. The recovery of the weapons from the place of occurrence is doubtful as the seizure witnesses, PW-4 and PW-5 have both turned hostile. There is no FSL report with regard to the finger prints on the weapons of assault to link them with the respondents. The occurrence is stated to have taken place in an open area near a bungalow and not on the street where street lights may be available. It was a dark night with no moonlight even. Identification of the respondents is therefore doubtful. Disputing that PW-2 was an eye witness to the assault, it was submitted that he had run away from the spot.

8. PW-14 did not mention the presence of any stab