Case: Solanki Chimanbhai Ukabhai Vs. State of Gujarat

at the 4th left intercostal space, about 2 1/2" from midline oblique in direction from superolateral to inferomedial.(2) Stab wound 1" x 1/2" x 4" deep at the 3rd left intercostal space about 4" from midline, horizontal in direction.(3) Abrasion 1/4" x 1/4" at the tip of nose.In the opinion of Dr. Desai, injuries [1] and [2] were possible by a sharp cutting instrument and injury [3] was possible by friction with rough surface or by a fall. Dr. Desai, however, specifically deposed that injuries [1] and [2] were possible by piercing blow give by a spear. Other internal injuries noticed by the doctor were corresponding to external injuries [1] and [2] According to the doctor the cause of injuries [1] and [2] singly or cumulatively was sufficient in the ordinary course of nature to cause death. According to him, the cause of death was shock and haemorrhage due to external and internal injuries noticed by him.11. The High Court appraising the evidence of the doctor observed as follows :It is the positive evidence of Dr. Desai in examination-in-chief that both the aforesaid injuries were possible by a sharp cutting instrument such as the spear before the Court. Under cross- examination all that has been elicited from the doctor is that two different weapons might have been used for causing the aforesaid injuries, since one of the injuries was an incised would and the other was a stab wound. Be it noted, however, that it has not been elicited in cross-examination that one weapon such as a spear could not have caused both the injuries. To say that two different weapons might have been used for causing two different injuries is not equivalent to saying that one weapon could not have caused both the injuries. In fact, even according to what the doctor has stated at the conclusion of his cross examination, both the injuries were possible by a blow given by a dagger if the assailant inflicted the blows while sitting on the person of the deceased. It is difficult to conclude, therefore, on the testimony or Dr. Desai, that both the injuries could not possibly have been caused by the same weapon to the deceased or that a spear could not have caused the first injury.The Court also observed that the possibility cannot be ruled out that injury [1] could have been caused to the deceased if the blade of the spear had landed sideways on his person. In the absence of any specific cross-examination of the medical witness with a view to establish that injury [1] could never have been caused by a spear, one would be entering into the realm of conjecture in holding that injury [1] was not possible by a spear.12. In the opinion of the High Court it would not be proper to discard the testimony of eye-witnesses, if it was otherwise satisfactory, on the simple ground that the medical testimony was in conflict with testimony of the witnesses, insofar as they depose to the injuries on the deceased having been caused by a spear.13. Ordinarily, the value of medical evidence is only corroborative. It proves that the injuries could have been caused in the manner alleged and nothing more. The use which the defence can make of medical evidence is to prove that the injuries could not possibly have been caused in the manner alleged and thereby discredit the eye- witnesses. Unless, 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 eye-witnesses, the testimony of the eye-witnesses cannot be thrown out on the ground of alleged inconsistency between it and the medical evidence.14. The main ground on which the evidence of the eye-witnesses have been discarded by the Sessions Judge, as observed earlier, was that the medical evidence belied the prosecution case. The High that medical evidence did not belie the prosecution case, rather it was in support of the prosecution case. In the view that the High Court took about the medical evidence, it proceeded to consider the worth of the evidence of the eye-witnesses. In the opinion of the High Court all the three witnesses were possible witnesses and their presence was quite natural. PW 4, being the widow of the deceased was likely to be present at home and see the incident herself. PW 3 was also the granddaughter of the deceased. Her presence at house is also a likely one. The third witness was a neighbour. The evidence of PW 4 was sought to be challenged on the ground that in her deposition before the police she had not named PW 3, the granddaughter of the deceased as present at the time of the occurrence and the evidence of PW 3 the granddaughter, who was aged seven years or eight years, was sought to be discarded on the ground that her name was not given by PW 4 in her statement before the police. The High Court has dealt with both these criticisms and has rightly come to the conclusion that all the three witnesses were natural witnesses and were present at the place of occurrence. The High Court has discussed the evidence of these three witnesses at great length and has also considered the grounds on which the testimony of these witnesses has been discarded by the Sessions Judge.It has given cogent reasons for relying on the testimony of the three witnesses. No exception, in our opinion, can be taken to the appraisal of the evidence made by the High Court. It is not necessary to repeat those reasons in great detail. In the opinion of the High possible conclusion on the basis of the material on the record. On these findings the High Court set aside the order of acquittal and convicted the appellant for the offence under Section 302. The petitioner has bow come to challenge the order of the High Court by filing the present appeal.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]9. The High Court was fully alive to the legal position about the power of the appellate court. The appellate court while dealing with an appeal against the order of acquittal has full power to review at large the evidence on which the order of acquittal is founded and to reach a conclusion that upon such evidence the order of acquittal should be reversed. However, in exercising that power the appellate court should give proper weight and consideration to the following matters : [1] the views of the Trial Judge as to the credibility of the witnesses, [2] the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at the trial, [3] the right of the accused to the benefit of any doubt, and [4] the slowness of the appellate court in disturbing a finding of fact arrived at by a Judge, who had the advantage of seeing the witness, which finding would not certainly be disturbed if two reasonable conclusions can be reached on the basis of the evidence on record.In the opinion of the High Court it would not be proper to discard the testimony ofif it was otherwise satisfactory, on the simple ground that the medical testimony was in conflict with testimony of the witnesses, insofar as they depose to the injuries on the deceased having been caused by a spear.13. Ordinarily, the value of medical evidence is only corroborative. It proves that the injuries could have been caused in the manner alleged and nothing more. The use which the defence can make of medical evidence is to prove that the injuries could not possibly have been caused in the manner alleged and thereby discredit the eyewitnesses. Unless, 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 bythe testimony of thecannot be thrown out on the ground of alleged inconsistency between it and the medical evidence.14. The main ground on which the evidence of thehave been discarded by the Sessions Judge, as observed earlier, was that the medical evidence belied the prosecution case. The High that medical evidence did not belie the prosecution case, rather it was in support of the prosecution case. In the view that the High Court took about the medical evidence, it proceeded to consider the worth of the evidence of theIn the opinion of the High Court all the three witnesses were possible witnesses and their presence was quite natural. PW 4, being the widow of the deceased was likely to be present at home and see the incident herself. PW 3 was also the granddaughter of the deceased. Her presence at house is also a likely one. The third witness was a neighbour. The evidence of PW 4 was sought to be challenged on the ground that in her deposition before the police she had not named PW 3, the granddaughter of the deceased as present at the time of the occurrence and the evidence of PW 3 the granddaughter, who was aged seven years or eight years, was sought to be discarded on the ground that her name was not given by PW 4 in her statement before the police. The High Court has dealt with both these criticisms and has rightly come to the conclusion that all the three witnesses were natural witnesses and were present at the place of occurrence. The High Court has discussed the evidence of these three witnesses at great length and has also considered the grounds on whichthe testimony ofwitnesses has been discarded by the Sessions Judge.It has given cogent reasons for relying onthe testimony ofthree witnesses. No exception, in our opinion, can be taken to the appraisal of the evidence made by the High Court. It is not necessary to repeat those reasons in great detail. In the opinion of the High possible conclusion on the basis of the material on the record. On these findings the High Court set aside the order of acquittal and convicted the appellant for the offence under Section 302. The petitioner has bow come to challenge the order of the High Court by filing the present appeal.