contradictions between the ocular and medical evidence, non-examination of Police officer who conducted seizure and subsequent improvement by one of the eye witness casts a serious doubt on the prosecution’s case.= It is on record that at the instance of the accused—appellant, police have recovered (Ext.P7) from arhar field the lathi allegedly used in the offence. However, nowhere it is recorded that the seized lathi contained any sharp edges with iron coated. Even it was not sent for examination of Dr. R.K. Dixit (PW 13) to ascertain whether the fatal injury could be resulted by it. Moreover, the record says that the blood on the bloodstained cap of deceased (Ext. P9) seized from the place of occurrence did not tally with that of the deceased. Another glaring deficiency is that Sub-Inspector who conducted the seizure proceedings and prepared the Ext. P7 (seizure memo) has not been examined by the prosecution. It is settled proposition in criminal jurisprudence that 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 the medical evidence is to prove that the injuries could not possibly have been caused in the manner alleged and thereby discredit the eyewitnesses.[1] In this case the nature of injury, contradiction about the time of arrival of the witnesses, contradictions between the ocular and medical evidence, non-examination of Police officer who conducted seizure and subsequent improvement by one of the eye witness casts a serious doubt on the prosecution’s case. For the foregoing reasons, we cannot hold the accused—appellant guilty of the offence in the present case.

REPORTABLE

IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 333 OF 2013
Baliraj Singh
…Appellant

Versus

State of Madhya Pradesh
…Respondent

JUDGMENT

N.V. RAMANA, J.

This appeal arises out of impugned Judgment and Order dated 12th January,
2012 passed by a Division Bench of High Court of Madhya Pradesh, Jabalpur
in Criminal Appeal No. 533 of 1994 upholding the conviction and sentence
passed by the learned trial Court against the appellant herein for the
offence punishable under Section 302/34, IPC.

The facts, limited for the purpose of dealing with this appeal, as divulged
by the prosecution case are that on 6th January, 1992, Hira Singh Gond
(Complainant—PW 7) lodged an FIR at Bahri Police Station, Sidhi District
stating that his brother Mangal Singh had gone to the fields to answer
nature’s call, when Baliraj Singh (A1 & Appellant herein) and Baijnath
Singh (A2) attacked him (Mangal Singh) with lathis causing instantaneous
death of Mangal Singh. Accordingly police registered Crime No. 5/92 against
the accused, body of the deceased was sent for postmortem examination,
lathis allegedly used in the crime were seized at the instance of the
accused and charges were framed against them under Section 302/34, IPC to
which the accused pleaded not guilty and claimed trial.

In order to bring home the guilt of the accused, prosecution has examined
13 witnesses, while no one was examined on the defense side. On the basis
of statements of eyewitnesses, Ramrati (PW 9—wife of the deceased), Chameli
(PW 8—wife of the complainant and sister-in-law of the deceased), and
Lakhan Singh (PW 12—family friend of the deceased), and considering the
medical evidence, the trial court came to the conclusion that accused were
guilty of committing the murder of Mangal Singh (deceased). Accordingly,
the trial Court convicted the accused under Section 302/34, IPC and
sentenced them to undergo imprisonment for life.

Aggrieved by the order of the trial court, both the accused filed criminal
appeal before the High Court. However, during the pendency of appeal
before the High Court, Baijnath Singh (A2) had died, therefore his sentence
got abated. The High Court also found the statements of eyewitnesses to be
cogent and trustworthy, therefore concurred with the judgment of the trial
Court and dismissed the appeal of the appellant-accused. Hence the present
appeal by way of special leave.

We have heard learned counsel for the parties at length. The case on behalf
of the appellant as advanced by the learned counsel is that most of the
prosecution witnesses are interested witnesses, particularly the
eyewitnesses belong to one family and they had a longstanding grudge
against the accused over property dispute between both families, and hence
the appellant was falsely implicated in retaliation. The testimonies of
Hira Singh (PW 7—brother of the deceased), Chameli (PW8—sister-in-law of
the deceased), Ramrati (PW9—wife of the deceased) and Lakhan Singh (PW
12—family friend of the deceased) cannot be relied on as they were
inconsistent and lack credibility. Besides they are contrary to the medical
evidence. According to the own deposition of Lakhan Singh (PW 12—family
friend of the deceased), he used to call the deceased as ‘maama’. He has
stated that he arrived first at the place of incident upon hearing hue and
cry of the deceased and saw the accused running away from the scene of
offence. But, as per the testimonies of Chameli (PW 8—sister-i-law of the
deceased) and Ramrati (PW 9—wife of the deceased) who reached the place of
occurrence afterwards, the accused were still beating the deceased with
lathis. Contrary to their statements, Dr. R.K. Dixit (PW 13) who conducted
postmortem examination on the body of the deceased opined that the death
was caused due to fatal injury by a sharp and pointed object or weapon.
Nowhere in their testimony, the eyewitnesses specified that the accused
carried sharp edged weapons, attributing the fatal injury to the victim.
It is only before the trial Court, Ramrati (PW 9—wife of the deceased)
improvised her version and deposed that when she reached the place of
occurrence, the accused were beating her husband with lathis which were
coated with iron. Her statement cannot be made basis for convicting the
accused as she is very much an interested witness, more so when there is no
specific averment as to who caused the fatal injury on the neck, leading to
the death of the victim. It was not appropriate on the part of Courts below
to ignore the fact that the eyewitnesses deposed that they saw the accused
giving beatings to the victim with sticks while the medical evidence
suggests that the cause of death was by a sharp edged weapon. Before
substantiating the crime against accused, the courts below failed to
scrutinize the prosecution evidence with utmost care when the eyewitnesses
are closely related. Only by placing reliance on couched evidence, the
trial Court recorded conviction of the accused. The High Court also ignored
just principles of law to ensure that the prosecution should prove its case
beyond reasonable doubt and in a mechanical way fastened crime with the
appellant and committed serious error by upholding conviction.

Adverting to the above arguments, learned counsel for the State submitted
that the ocular testimony of PWs 8 and 9 remained consistent and duly
corroborated by the medical evidence. There was no suspicion for false
implication of the accused as the eyewitnesses had categorically explained
the beatings given by the accused leading to the death of Mangal Singh.
There was specific statement by PW 9 (wife of the deceased) that the sticks
with which accused given beatings to the deceased were coated with iron.
The Courts below were at no fault in appreciating the direct evidence of
eyewitnesses so as to connect the accused with the commission of the crime
and the judgment of conviction under Section 302/34, IPC does not call for
any interference by this Court.

In the backdrop of what has been argued by the learned counsel for the
parties and in the light of relevant material available on record we may
now proceed with our observations. Admittedly there was no peace and
harmony between the victim and accused groups as they locked horns with
each other over a longstanding dispute dating back 30 years, relating to
mutation proceedings of some landed property. The thrust of the
prosecution to prove the charge against the appellant was mainly on the
evidence of Chameli (PW 8)—wife of the complainant Hira Singh and sister-in-
law of the deceased, Ramrati (PW 9)—wife of the deceased and Lakhan Singh
(PW12)—family friend of the deceased, to make an endeavor that in all
probability it was the accused who committed the guilt.

We find from the record that PW12—Lakhan Singh was the first person to
reach the place of occurrence when an alarm was raised by the victim. In
his statement to the police under Section 161, Cr.P.C. it was unambiguously
stated in clear terms that when he reached the place of occurrence, he saw
the accused running away from the spot. It was not mentioned in the FIR or
in his statement to the police that he witnessed the accused-appellant
injuring the victim. It is only in his deposition before Court, with
variation to his earlier statement before the police, he narrated that he
was present at the spot at the time of commission of offence and witnessed
the accused showering lathi blows on the deceased. He admittedly made clear
that PWs 8 and 9 reached the place of occurrence afterwards.

On the other hand, PW 8 in her statement deposed that she saw accused
beating the deceased with lathis due to which the deceased had sustained
injuries on head, neck and blood was oozing out from there and there was
sunlight at that time. PW 9 (wife of the deceased) also made the same
statement however with some intensity that the lathis were coated with
iron. Veracity of the statements of these two witnesses is doubtful at the
threshold itself, as they do not tally with the statement of PW12 who
admittedly reached the place of occurrence first.

Considering the totality of the prosecution case, we fail to understand
that at the time of such occurrence in a small village, when there was
sunlight and PW8 & PW9 along with villagers rushed upon hearing uproar of
PW12, no attempt was made by any of the eyewitnesses or villagers to catch
hold of the accused. This lacuna in the prosecution case becomes stronger
with the fact that in the FIR it was clearly mentioned, as PW8 saying to
the complainant that upon hearing hue and cry from the field, PW9, PW12 and
other people of village rushed to the field. Though there was no indication
in the FIR on PW8 herself rushing to the scene of offence, it is however
apparent that some other people of village rushed to the place of
occurrence, but there was none among the villagers who rushed with PWs 8 &
9 as independent eyewitness.

Thus, it is true that other than PW12—family friend of the deceased, the
prosecution has not made any independent witness from the village people
who rushed to the place of offence along with PWs 8 & 9 on hearing hue and
cry from the field. The circumstances warrant application of due care and
caution in appreciating the statements of eyewitnesses because of the fact
that the prime eyewitnesses are related inter-se and to the deceased.
Hence, the prosecution has failed to put a strong case as we cannot attach
credence to the statements of PWs 8, 9 & 12. The courts below erred in not
applying the principle of strict scrutiny in assessing the evidences of
eyewitnesses (PWs 8, 9 & 12).

Further, we find from the postmortem report (Annexure P1) prepared by Dr.
R.K. Dixit (PW 13) upon examining the body of deceased, that there was a
punctured wound just below the angle of right mandible over the right side
of neck 1” x ½” x 3” and on dissection, he found that major artery was
punctured and trachea was cut. There was hematoma underlying the whole side
of neck and in the opinion of Doctor, the injury was caused by a sharp
piercing object. In his evidence, Doctor (PW 13) confirmed that cause of
death was due to excessive hemorrhage form the punctured wound over the
right side of neck caused by sharp piercing object and due to punctured
major blood vessel, over right side of neck.

It is on record that at the instance of the accused—appellant, police have
recovered (Ext.P7) from arhar field the lathi allegedly used in the
offence. However, nowhere it is recorded that the seized lathi contained
any sharp edges with iron coated. Even it was not sent for examination of
Dr. R.K. Dixit (PW 13) to ascertain whether the fatal injury could be
resulted by it. Moreover, the record says that the blood on the
bloodstained cap of deceased (Ext. P9) seized from the place of occurrence
did not tally with that of the deceased. Another glaring deficiency is that
Sub-Inspector who conducted the seizure proceedings and prepared the Ext.
P7 (seizure memo) has not been examined by the prosecution. It is settled
proposition in criminal jurisprudence that 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 the medical evidence is to prove that the injuries could not
possibly have been caused in the manner alleged and thereby discredit the
eyewitnesses.[1] In this case the nature of injury, contradiction about the
time of arrival of the witnesses, contradictions between the ocular and
medical evidence, non-examination of Police officer who conducted seizure
and subsequent improvement by one of the eye witness casts a serious doubt
on the prosecution’s case.

For the foregoing reasons, we cannot hold the accused—appellant guilty of
the offence in the present case. The conviction against appellant as
recorded by the trial court and upheld by the High Court is therefore set
aside and he is acquitted of the charges. He shall be set at liberty
forthwith if not required to be detained in connection with any other
offence.

The appeal stands allowed accordingly.

…………………………….J
(N. V. Ramana)

……………………………J
(Prafulla C. Pant)

New Delhi
Dated: April 25, 2017
ITEM NO.1A COURT NO.10 SECTION IIA
(For Judgment)

S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS

Criminal Appeal No(s). 333/2013

BALIRAJ SINGH Appellant(s)

VERSUS

STATE OF MADHYA PRADESH Respondent(s)
Date : 25/04/2017 This appeal was called on for pronouncement of judgment
today.

For Appellant(s)
Mr. C. S. N. Mohan Rao,Adv.

For Respondent(s)
Mr. Mishra Saurabh,Adv.
Hon’ble Mr. Justice N.V. Ramana pronounced the judgment of the
Bench comprising His Lordship and Hon’ble Mr. Justice Prafulla C. Pant.

We cannot hold the accused-appellant guilty of the offence in
the present case. The conviction against appellant as recorded by the
trial court and upheld by the High Court is therefore set aside and he is
acquitted of the charges. He shall be set at liberty forthwith if not
required to be detained in connection with any other offence.

This appeal stands allowed in terms of the signed reportable
judgment.

[SUKHBIR PAUL KAUR] [S.S.R.KRISHNA]
A.R.-CUM-P.S. ASSISTANT REGISTRAR

(Signed reportable judgment is placed on the file)
———————–
[1]
[2] Solanki Chimanbhai Ukabhai v. State of Gujarat, AIR 1983 SC
484

Advertisements
This entry was posted in Uncategorized. Bookmark the permalink.