The High Court has thus knocked out an eye-witness on the
strength of an uncanny opinion expressed by a medical
witness over dependence on such opinion evidence, even if
the witness is an expert in the field, to checkmated the
direct testimony given by an eye-witness is not a safe modus
adoptable in criminal cases. It has now become axiomatic
that medical evidence can be used to repel the testimony of
eye-witnesses only if it is so conclusive as to rule out
even the possibility of the eye witness's version to be
true. A doctor who conducted post-mortem examination or
examined an injured person is usually confronted with such
questions regarding different possibilities or probabilities
of causing those injuries or post-mortem features which he
noticed in the medical report. But the answers given by the
witness to such questions need not become the last word on
such possibilities. After all he gives only his opinion
regarding such questions. But to discard the testimony of an
eye-witness simply on the strength of such opinion expressed
by the medical witness is not conducive to the
administration of criminal justice ( Vide Piara Singh and
others vs. State of Punjab [ AIR 1977 SC 2274 ], Manga vs.
State of Haryana [Air 1979 SC 1194 ], Ramdev and another vs.
State of Uttar Pradesh [ 1995 Suppl (1) SCC 547].
STATE OF U.P.
Vs.
HARBAN SAHAL & OTHERS
DATE OF JUDGMENT: 20/04/1998
BENCH:
M.M. PUNCHHHI, K.T. THOMAS, S. RAJENDRA BABU
Thomas, J.
This appeal by special leave is by the State of Uttar
Pradesh Challenging the Acquittal order passed by a Division
Bench of the Allahabad High Court in a murder case. The
Sessions Court had convicted four accused under Section 302
read with Section 34 of Indian penal Code and sentenced all
of them to imprisonment for life and it was on their appeal
that the conviction was reversed. The four accused were
arrayed in this appeal as respondents, but first respondent
Harban Sahai passed away during the pendency of this appeal.
So the case was considered only as against the remaining
three respondents. They are: 2nd accused - Sarwan Sahai, 3rd
accused- Virendra and 4th accused - Vimlesh.
The genesis of the events which led to the occurrence
in this case was the murder of Virendra's father (Shyam
Manohar) in 1976. In that murder case PWI (Shashi Bhushan)
and his uncle (Jagdish Prasad- the deceased in this case)
were challaned by the police as accused which ended in their
conviction by the trial court. They filed an appeal before
the Allahabad High Court. They filed an appeal before the
Allahabad High Court. During the pendency of that appeal
their sentence was suspended and they were releases on bell
just a couple of days prior to the incident in this case.
First accused (Harban Sahai) and second accused (Sarvan
Sahai) are the nephews of Shyam manohar. The fourth accused
(Vimlesh ) is his grandson. As pointed out above, third
accused (Virendra) is the son of Shyam Manohar.
The incident in this case happened on 16.1.1978
prosecution version is thus: Shyam Manohar (deceased ) and
his nephew Shashi Bhushan (PW1) were walking through the
sugarcane field belonging to one Maiku. The time was then
around 4.30 p.m. They saw the fourth accused emerging from
the north of the field. First accused (Harban Sahai) and
forth accused (Vimlesh) had guns with them and others had
lathis. Seeing the deceased and shashi Bhushan the third
accused (Virendra) yelled out that they would average for
the murder of their father. Sensing the on-rushing danger
PW1 and deceased scampered away, but they were chased by the
assailants, A1(Harban Sahai) and A4(Vimlesh) fired their
guns and shyam Manohar fell on the ground, while PW1
succeeded in escaping by running towards a different
direction. Second accused (Sarwan Sahai) and third accused
(Virendra) went near the fallen victim and lambasted him
with sticks. When some local people rushed to the scene the
assailants made their escape good. Shyam Manohar was taken
in a bullock-cart to the hospital but on the way he breathed
his last.
The First Information Report was lodged by PW1 (Shashi
Bhushan) at the local police station in which he mentioned
all the details of the occurrence including the names of the
accused as well as the names of those who reached the place
on hearing the commotion.
PW 7 (Dr.R.S. Pandey) of the District Hospital
Moradabad, conducted post-mortem examination on the dead
body of Shyam Manohar. He noted ten anti-mortem injuries on
the body including five lacerated wounds and one incised
would on the right chest which did not gape into the cavity.
Among the lacerated wounds one was ostensibly a gun-shut
wound on the left temporal region associated with a
fracture. One pellet was found embedded in the brain. That
wound is described as injury No. 7 in the post-mortem
certificates issued by the doctor.
Sessions Judge found that evidence of PW1(Shashi
Bhushan) and PW 2 ( Shiv Sagar Lal) are quite reliable
basing on their testimony. The trial court convicted all the
accused.
But the High Court found the evidence of the tow eye-
witnesses not worthy of credence. One of the reasons high-
lighted by the High Court is that both eye-witnesses said in
Court that one of the lathis was a Kanta (a stick with a
knife like portion on one end) whereas in the FIR, the
informant had said that only lathis and guns were employed
by the assailants. According to the High Court the witnesses
purposely made the said improvement upon the FIR in order to
give an explanation of the incised injury noted by the
doctor during autopsy.
The aforesaid criterion is the result of the strained
reasoning. It is understood that "Kanta" without sharp
projection at the end would be a mere stick or lathi. If the
nephew of the deceased mentioned in the FIR that assailants
were armed with lathis and guns there is no reason to
concludes that the information when he gave first
information had ruled out the possibility of Kanta being
used by the assailants. FIR is not a chronicle of the
exhaustive details of the occurrence, not is it a catalogue
of everything including minor particulars of the events
which took place. Picking out an insignificant discrepancy
regarding description of one of the weapons for jettisoning
an otherwise sturdy account of the eye-witness is to a
commendable approach in evaluation of evidence .
The second reason put-forth by the High Court for
disbelieving the version of the eye-witnesses is this: PW1
(Shashi Bhushan) and PW2 (Shiv Sagar Lal) said that two
accused head fired the fun simultaneously, but the deceased
sustained only one gun-shut injury which is described in the
post-mortem certificate as injury No. 2. The public
Prosacutor in the trial court endeavoured to show that
injury No. 7 would possibly have been the result of a gun
shot. Dr. R.S. Pandey (PW7) answered to the said query
saying that there is a possibility of that injury being
caused in a gun-shot if pellets have touched that part of
the fact and deflected therefrom. Injury No. 7 is described
as "multiple abrasions in an area of 7 cms/6cms on the right
side of the face 2.5 cm below right eye." But the High Court
ruled out the possibility of the said injury having been
caused in gun-shot on the following reasoning.
" But in the cross-examination the
doctor has denied the possibility
of such Injury being caused while
the deceased was being chased from
behind and that is exactly wheat
and prosecution case is, that while
the deceased was running away the
appellants armed with guns, fired
from behind. consequently injury
No. 7, even if it is said to be a
gun-shot injury, would not go to
corroborate the prosecution case in
any manner."
The High Court has thus knocked out an eye-witness on the
strength of an uncanny opinion expressed by a medical
witness over dependence on such opinion evidence, even if
the witness is an expert in the field, to checkmated the
direct testimony given by an eye-witness is not a safe modus
adoptable in criminal cases. It has now become axiomatic
that medical evidence can be used to repel the testimony of
eye-witnesses only if it is so conclusive as to rule out
even the possibility of the eye witness's version to be
true. A doctor who conducted post-mortem examination or
examined an injured person is usually confronted with such
questions regarding different possibilities or probabilities
of causing those injuries or post-mortem features which he
noticed in the medical report. But the answers given by the
witness to such questions need not become the last word on
such possibilities. After all he gives only his opinion
regarding such questions. But to discard the testimony of an
eye-witness simply on the strength of such opinion expressed
by the medical witness is not conducive to the
administration of criminal justice ( Vide Piara Singh and
others vs. State of Punjab [ AIR 1977 SC 2274 ], Manga vs.
State of Haryana [Air 1979 SC 1194 ], Ramdev and another vs.
State of Uttar Pradesh [ 1995 Suppl (1) SCC 547].
In this case, High Court has over-looked the fact that
even the admitted gun-shot injury was "on the left temporal
region". If such an injury could be caused while both were
running then it is equally possible that a gun-shot injury
can as well be caused on the "right side of the face." It
would be waird to assume that the running man's head would
not have swivelled to either side. That apart it is not
necessary that the bullet emanated from the gun should have
hit the target, as it might have just by passed him. At any
rate, the said reasoning of the High Court is too fragile
for throwing the evidence of an eye-witness over-board.
The third reasoning of the High Court the blood-stained
earth collected by the Investing officer from the place of
occurrence war not forwarded to the Chemical Examiner to
test the origin of blood such reasoning is too tenuous and
even if such contention was advanced by the defence the High
court need not have taken any serious head to it. Omission
to send the collected from the place of occurrence for
chemical examination has not vitiated the investigation to
any extent. We disapprove the aforesaid reasoning of the
High Court.
When the reasons put-forth by the High Court against
the evidence of the two principal witnesses PW1 ( Shashi
Bhushan) and PW 2 (Shiv Sagar Lal) are found too
insufficient to discard their testimony we have to look at
the evidence from other angles to see how far it is
acceptable.
PW1'S version regarding the occurrence gets a very
stable corroboration from the FIR which was lodged by him
within two hours of the occurrence. The High Court did not
entertain any doubt that FIR was anti-dated or that there
was any delay in its lodgement. Even the defence did not
contend like that. in such a situation the prompt and early
reporting of the occurrence by PW1 to the police with all
its vivid details gives us an assurance regarding truth of
his version.
Evidence of PW2 can be viewed from broad angles. he is
the owner of a field situated adjacent to the place where
the occurrence happened. So there is a fair probability of
his being present at his field. Second is, when PW1 stated
in the FIR that a number of persons had reached the place
during the occurrence, the name of PW2 was also mentioned in
that list. The Investigating Officer questioned him at the
earliest point of time and cited him in an eye-witness. The
trial court found his evidence quite reliable. There is
nothing to doubt that he was speaking falsehood. for these
reasons we find no scope to reject his testimony.
The motive alleged for the murder is apparently a
very strong one. The assailants are the close kith and kin
of Shyam Manohar who was murdered. There was every ground
for the assailants to believe that Shyam Manohar was
murdered by the deceased Jagdish Prasad and his nephew
shashi Bhushan (PW1). This is clear from the fact that one
court found them quilty of that murder . But when assailants
knew that despite the conviction and sentence passed by the
trial court they were are large as the high Court had
suspended their sentence and released them on Bail,
naturally the instinct of revenge would have been galvanised
and they would have been groping for an opportune time to
avenge for the murder of their father Shayam Manohar. Thus
the motive put forward by the prosecution stands proved and
it is a very strong circumstance to buttress the prosecution
version.
In our view, the High Court has benefited the accused
with an unjust and unmerited acquittal based on certain
reasons which are wholly insupportable.
We, therefore, reverse the order of acquittal and
restore the conviction and sentence passed by the session
Court. We direct the Sessions Court to take necessary steps
to put respondent No. 2 Sarwan Sahal, No.3, Virendra and No.
4, Vimlesh back in jail for undergoing the sentence. The
appeal is thus allowed.
No comments:
Post a Comment