KUMBHAR MUSA ALIB Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The appellant was convicted under sec. 326 Indian Penal Code by the learned Sessions Judge Kutch for assaulting one Ibrahim. After the assault he became unconscious and subsequently regained consciousness but he lost his power of speech. His evidence was therefore given by signs under sec. 119 of the Evidence Act. If evidence is recorded under that section there must be a record of signs and not the interpretation of signs. It is true that at some places the learned Sessions Judge has recorded the signs as well as the interpretations but the signs made by the witness in answer to several other questions are not recorded but only the interpretations. This is not a correct compliance with sec. 119 of the Indian Evidence Act. This also does not enable the appellate Court to know whether the interpretation of the signs is correct or not.

(2.) The prosecution also relies on evidence that human blood was found on the axe found with the appellant. But the police constable Alarakha who took the axe to the Chemical Analayser has not been examined by the prosecution.

(3.) In view of these irregularities the conviction and sentence of the appellant are set aside and the matter is remanded for a fresh trial. Retrial ordered.