Full Judgment Text
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CASE NO.:
Appeal (crl.) 215 of 2007
PETITIONER:
Shyam
RESPONDENT:
State of M.P. through P.S. Bercha
DATE OF JUDGMENT: 15/02/2007
BENCH:
Dr. ARIJIT PASAYAT & S.H. KAPADIA
JUDGMENT:
J U D G M E N T
(Arising Out of S.L.P. (Crl.) No. 2493 of 2006)
Dr. ARIJIT PASAYAT, J.
Leave granted.
Challenge in this appeal is to the order passed by a
Division Bench of the Madhya Pradesh High Court, Indore
Bench. On the basis of the accusations that appellant and
four others were responsible for the homicidal death of one
Kailash (hereinafter referred to as the ’deceased’) on
27.10.1995, the accused persons faced trial. The learned First
Additional Sessions Judge, Shajapur, found two of the
accused persons i.e. Prakash and appellant herein Shyam to
be guilty of offence punishable under Section 302 read with
Section 34 of the Indian Penal Code, 1860 (in short the ’IPC’).
Each was sentenced to undergo imprisonment for life and to
pay a fine of Rs.1,000/- each with default stipulation. The
other three were acquitted. The appellant and co-accused
Prakash preferred an appeal before the High Court which was
dismissed by the impugned order, so far as appellant is
concerned. Prakash was directed to be acquitted.
Prosecution version as unfolded during trial is as follows:
On 27.10.1995 wife of the deceased Bhagwantibai (PW-1)
was in her house, when at about 11.00 o’ Clock, she heard the
alarm raised by her husband. When she came out, she
witnessed that the accused persons and the acquitted co-
accused were grappling with him. Just then, appellant Shyam
went to his house and brought a knife while accused Babloo @
Prakash exhorted them to kill him. Acquitted co-accused
Dhapubai and Kirshnabai then caught the deceased and
Shyam and Prakash administered several blows of knife
causing injuries in various part of the body of deceased
Kailash. Bhagwantibai (PW-1) raised an alarm and informed
Mohanlal, Babu and Ramchandra about the incident. Kailash
was carried on a cot to the hospital, but he succumbed to the
injuries. Report of the incident Ex.P/1 was lodged at the
police station by Bhagwantibai (PW-1), which was recorded by
B.L. Meena, Station House Officer (PW-8) and an offence was
registered against the accused. During investigation, inquest
was held and inquest report Ex.P/6 was prepared. The body
was forwarded for post-mortem examination vide requisition
Ex.P/3. Spot map Ex.P/10 was prepared and samples of
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blood stained and simple earth were obtained vide Ex.P/11. A
pair of chappals from the spot was seized under memo
Ex.P/12. During investigation, accused persons were arrested
and the disclosures made by them were recorded and in
pursuance thereof, knife, vest (baniyan) from Shyam and a
knife and kurta, pyajamas from Prakash were seized. The
seized articles were sent to the Forensic Science Laboratory for
analysis and charge sheet was filed against the appellants and
co-accused.
On consideration of evidence on record, appellant and
Prakash were convicted and others were acquitted. The
convicted accused persons preferred an appeal before the High
Court.
The primary plank of the argument of the appellant
before the High Court was that the medical evidence was at
variance with the so called eye witnesses’ version. The High
Court did not accept the stand. The High Court found that
actually there was no variance between the medical evidence
and the ocular evidence. The High Court found no substance
in the said plea of the accused appellant. It, however, found
that accusations were not established so far as the accused
Prakash was concerned. Accordingly his conviction was set
aside and he was acquitted. However, the High Court found
that the conviction under Section 302 IPC was not
appropriate, the proper provision applicable would be Section
304 Part II IPC so far as present appellant is concerned.
Custodial sentence of 7 years was imposed. Accordingly the
appeal was partially allowed.
Learned counsel for the appellant submitted that since
on the very same evidence three persons have been acquitted,
it would not be proper to convict accused appellant on the self-
same evidence, that too of a relative i.e. deceased’s widow.
There was also delay in lodging the FIR. Alternatively, it was
submitted that the High Court was not justified in holding that
the appellant was responsible for the death of the deceased
and/or that he had knowledge that the act committed by him
would result in death.
Learned counsel for the State on the other hand
supported the judgment of the High Court.
Coming to the case of appellant Shyam, the eye witness
has right from the stage of the first information report, given a
vivid description about the participation from the beginning,
the manner in which he went to his house and brought the
knife and he assaulted and caused injuries to Kailash. The
evidence of Dr. H.L. Arya (PW-3) and his autopsy report clearly
recorded four external injuries on the body of the deceased
Kailash. The testimony of this witness has been subjected to
searching cross-examination, but nothing has been brought
on record to discredit the statement of Bhagwantibai (PW-1).
What has been suggested is that the deceased was drunken
and that there was grappling between the two in which the
deceased sustained injuries. As seen from the injuries
recorded in post mortem report, first injury has been
sustained in the lumbar region, second on the shoulder, third
in the inguinal region and the fourth on the left forearm. It
appears incredible that in grappling, a person would sustain
injuries on places where it would be difficult for his hand to
reach. It is also beyond comprehension that in such grappling
with a knife in the hand of the deceased, the other party,
namely the accused, would escape unscathed. We have
recorded the submission only to discard it. Thus the
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prosecution has fully succeeded in showing that it was on
account of the injuries inflicted by accused Shyam that death
of Kailash occurred.
There is no proposition in law that relatives are to be
treated as untruthful witnesses. On the contrary, reason has
to be shown when a plea of partiality is raised to show that the
witnesses had reason to shield the actual culprit and falsely
implicate the accused. No evidence has been led in this regard.
So far as the delay in lodging the FIR is concerned, the
witnesses have clearly stated that after seeing the deceased in
an injured condition immediate effort was to get him
hospitalized and get him treated. There cannot be any
generalization that whenever there is a delay in lodging the
FIR, the prosecution case becomes suspect. Whether delay is
so long as to throw a cloud of suspicion on the seeds of the
prosecution case, would depend upon the facts of each case.
Even a long delay can be condoned if the witnesses have no
motive of implicating the accused and have given a plausible
reason as to why the report was lodged belatedly. In the
instant case, this has been done. It is to be noted that though
there was cross-examination at length no infirmity was noticed
in their evidence. Therefore, the trial Court and the High
Court were right in relying on the evidence PW-1.
So far as the alleged variance between medical evidence
and ocular evidence is concerned it is trite law that oral
evidence has to get primacy and medical evidence is basically
opinionative. It is only when the medical evidence specifically
rules out the injury as claimed to have been inflicted as per
the oral testimony, then only in a given case the Court has to
draw adverse inference.
In some cases persons may not like to come and depose
as witnesses and in some other cases the prosecution may
carry the impression that their evidence would not help it as
there is likelihood of partisan approach so far as one of the
parties is concerned. In such a case mere non-examination
would not affect the prosecution version. But at the same time
if the relatives or interested witnesses are examined, the Court
has a duty to analyse the evidence with deeper scrutiny and
then come to a conclusion as to whether it has a ring of truth
or there is reason for holding that the evidence was biased.
Whenever a plea is taken that the witness is partisan or had
any hostility towards the accused, foundation for the same has
to be laid. If the materials show that there is partisan
approach, as indicated above, the Court has to analyse the
evidence with care and caution. Additionally, the accused
persons always have the option of examining the left out
persons as defence witnesses.
Over dependence on such opinion evidence, even if the
witness is an expert in the field, to checkmate the direct
testimony given by an eyewitness 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
eyewitness only if it is so conclusive as to rule out even the
possibility of the eyewitness’s version to be true. A doctor
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 may
express his views one way or the other depending upon the
manner the question was asked. 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
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such questions. But to discard the testimony of an eyewitness
simply on the strength of such opinion expressed by the
medical witness is not conducive to the administration of
criminal justice. (See, State of U.P. v. Krishna Gopal and Anr.
(AIR 1988 SC 2154) and Ramanand Yadav v. Prabhu Nath Jha
& Ors. [2003 (12) SCC 606].
In this case it has been categorically held that there is no
variance. That being so, even the hypothetical plea is also
applicable.
In the aforesaid circumstances the judgment of the High
Court does not suffer from any infirmity.
The appeal is dismissed.