Supreme Court of India
Pruthiviraj Jayantibhai Vanol vs Dinesh Dayabhai Vala . on 26 July, 2021Author: Navin Sinha

Bench: Navin Sinha, R. Subhash Reddy









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 PW­2 who

was the pillion rider. The respondents are said to have
Signature Not Verified

Digitally signed by
assaulted with iron pipe, steel rod and stick, causing three stab
Date: 2021.07.26
16:39:17 IST

wounds and nine incised wounds. The acquittal is premised on

the reasoning that the evidence of the eye­witnesses PW­2 and

PW­10, is inconsistent with the medical evidence, regarding the

nature of injuries vis­à­vis 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 PW­2

naming the four respondents. The deceased, PW­2, and the

four respondents were well known to each other from earlier.

Relations between them had soured, leading to the occurrence.

PW­12 had deposed that the respondents had threatened the

deceased earlier also. The deposition of PW­2 is corroborated by

an independent witness, PW­10 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 PW­2 at 2:45 am, with serious injuries and expired at 8:00

am, as deposed by the Doctor PW­14. 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 PW­1,

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, PW­4 and PW­5 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 PW­2 was an

eye witness to the assault, it was submitted that he had run

away from the spot.

8. PW­14 did not mention the presence of any stab or incised

injuries on the person of the deceased. PW­1 acknowledged

that stab or incised injuries could not be caused by an iron rod.

In view of the variation between the ocular and medical

evidence, the High Court rightly opined that the Doctor was in a

confused state of mind. There was no motive and it was a mere

chance meeting of the respondents with the deceased. In

absence of any specific allegations with regard to which of the

respondents assaulted in what manner, and also considering

that respondent nos. 1 to 3 have undergone approximately eight

and half years of custody, in the entirety, their conviction may

be altered to one under Section 304 Part II IPC, sentencing

them to the period already undergone.

9. We have considered the submissions on behalf of the

parties and have been taken through the records.

10. The occurrence took place at 2:30 am. It is not in dispute

that PW­2 who was accompanying the deceased on the

motorcycle, took him to the hospital at 2:45 am. The deceased

was unconscious and in a precarious condition as deposed by

PW­14. The FIR was lodged barely hours later by PW­2 at 5:15

am naming the respondents. There was no time for the witness

to consider and ponder for naming the accused except to state

the truth. PW­2 deposed that the respondents stopped them

near the bungalow of one Chimanbhai Patel. He was pushed

down by Dipak who hit the deceased on his head with the iron

pipe. Thereafter all the respondents started assaulting the

deceased with iron pipes, sticks and iron rods. Thereafter, the

witness ran away and returned with his friends. The credibility

of PW­2 as an eye witness has not been doubted by the High


11. The respondents were not strangers, but well known to

PW­2 and the deceased. PW­12 deposed that the respondents

had threatened the deceased earlier also, and were compelling

him to withdraw the case and would also demand money from

him because of which the deceased had shifted from the locality

where they all they lived earlier.

12. There is evidence about the availability of light near the

place of occurrence. Even otherwise, that there may not have

been any source of light is hardly considered relevant in view of

the fact that the parties were known to each other from earlier.

The criminal jurisprudence developed in this country recognizes

that the eye sight capacity of those who live in rural areas is far

better than compared to the town folks. Identification at night

between known persons is acknowledged to be possible by

voice, silhouette, shadow, and gait also. Therefore, we do not

find much substance in the submission of the respondents that

identification was not possible in the night to give them the

benefit of doubt.

13. In Nathuni Yadav vs State of Bihar, (1998) 9 SCC 238,

with regard to identification in the dark, this court observed:

“9…. Even assuming that there was no moonlight
then, we have to gauge the situation carefully. The
proximity at which the assailants would have con­
fronted with the injured, the possibility of some light
reaching there from the glow of stars, and the fact
that the murder was committed on a roofless terrace
are germane factors to be borne in mind while judg­
ing whether the victims could have had enough visi­
bility to correctly identify the assailants. Over and
above those factors, we must bear in mind the fur­
ther fact that the assailants were no strangers to the
inmates of the tragedy­bound house, the eyewit­
nesses being well acquainted with the physiognomy
of each one of the killers. We are, therefore, not per­
suaded to assume that it would not have been possi­
ble for the victims to see the assailants or that there
was possibility for making a wrong identification of
them. We are keeping in mind the fact that even the
assailants had enough light to identify the victims
whom they targeted without any mistake from
among those who were sleeping on the terrace. If the

light then available, though meagre, was enough for
the assailants why should we think that the same
light was not enough for the injured who would cer­
tainly have pointedly focussed their eyes on the
faces of the intruders standing in front of them.”

14. PW­10 was an independent witness. Neither has his

presence been doubted nor his impartiality been suspected.

Sitting at the gate, he saw two persons on a motorcycle passing

through the ground. Four persons stopped them and started

beating the person who was driving the motorcycle while the

pillion rider ran away and then returned with four to five people.

The assailants had pipes, sticks and an iron rod with a turn.

The assailants ran away throwing the weapons of assault at the

place of occurrence. The witness has corroborated PW­2 in all

material particulars.

15. PW­1, the Doctor who conducted the post­mortem, found

the following injuries on the person of the deceased:

“…(vi) 2.5 cm long cut wound on middle of right ear.
(vii) One stitched wound one centimeter below the
injury No. 5, its size was 8 cm x .25 cm, it was stitched
with black thread.
(viii) One cut wound going oblique from lip to ear, its
size was 1.5 cm, it was deep upto muscle.
(ix) One cut wound, 2 cm below the right lip going
towards backside of ear, its size was 2.5 cm, it was
deep upto muscle.
(x) One stitched oblique wound on right side of chin
going towards backside, its size was 3.5 cm x .25 cm,

it was stitched with black thread.
(xi) One stabbed wound on right occipital protuberance
(at middle of the backside of skull), its size was 1 cm
x .5 cm, it was deep upto muscles of scalp.
(xii) One stabbed wound on right hand at upper 1/3
and lower 2/3 level, its size was 2 cm x 1.5 cm, deep
upto muscles, both the edges were T square and
wound margin was sharp.
(xiii) One stabbed wound at 2.5 cm below injury No.2,
its size was 2.5 cm x 1 cm, deep up to muscles, both
the edges were T­square and wound margin was
(xiv) Innumerous cut wounds on middle of arm region
of right hand and cutting each other at outside, its size
was 15 cm x 20 cm.
(xv) One cut wound on douser aspect of right forearm
(towards outside), it was starting from right wrist and
going upwards, its length was 10 cm and was deep
upto muscles.
(xvi) One cut wound found in the middle of right
forearm, which was oblique and upward on the
anterior aspect, its size was 6.6 cm, it was deep upto
subcutaneous tissue.
(xvii) One cut wound on index finger of left hand, on
douser aspect near base of second and third finger, its
size was 4.5 cm, it was deep upto muscles.
(xviii) One cut wound on base of left thumb oblique on
palmer aspect i.e. on palm, its size was 3.5cm, it was
deep upto muscles.
(xix) One cut wound found on base of left index. finger,
its size was 2.5 cm and was deep upto muscles.”

He deposed that the iron rod used for assault, shown to him,

had a turn and that injuries nos. 1 to 4 caused on the head

were possible by it. In his cross­examinations, he deposed that

the sharp cutting injuries were possible with the iron rod which

had a turn.

16. The recovery of the weapons of assault from the place of

occurrence stands established from the evidence of PW­4 and

PW­5 who had not denied their signatures on the seizure memo

and neither have they said that they were coerced into signing

the seizure memo. Cumulatively, in view of the nature of

evidence available, the absence of any FSL report with regard to

finger prints on the seized weapons is considered irrelevant.

17. Ocular evidence is considered the best evidence unless

there are reasons to doubt it. The evidence of PW­2 and PW­10

is unimpeachable. It is only in a case where there is a gross

contradiction between medical evidence and oral evidence, and

the medical evidence makes the ocular testimony improbable

and rules out all possibility of ocular evidence being true, the

ocular evidence may be disbelieved. In the present case, we find

no inconsistency between the ocular and medical evidence. The

High Court grossly erred in appreciation of evidence by holding

that muddamal no.5 was a simple iron rod without noticing the

evidence that it had a sharp turn edge.

18. The aforesaid discussion leads us to the conclusion that

the acquittal by the High Court is based on misappreciation of

the evidence and the overlooking of relevant evidence thereby

arriving at a wrong conclusion. It is not a case where two views

are possible or the credibility of the witnesses is in doubt.

Neither is it a case of a solitary uncorroborated witness. The

conclusion of the High Court is therefore held to be perverse

and irrational. The acquittal is therefore held to be

unsustainable and is set aside. In the nature of the assault,

Section 304 Part II, IPC has no application. The conviction of

respondent nos. 1 to 4 by the Trial Court is restored.

19. 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 the

present matter shall be listed for that limited purpose.

20. The appeal is allowed.


July 26, 2021



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