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Friday, April 28, 2017

benefit of doubt.= PW-3 the eye-witness to the incident has neither stated as to when the accused came with alleged weapons nor he extended any help to the deceased. Rather he fled away from the spot as per his deposition, and came to know about the death of the deceased in the evening. This peculiar fact of the case completely over-rides the direct evidence rule, because ultimately probabilities creating doubts with respect to the cause and modus-operandi of offence increases when alleged eye-witness flee away from the place of occurrence. Where the medical evidence is such that it does not give any clear opinion with respect to the injuries inflicted on the body of victim or deceased, as the case may be, the possibilities that the injuries might have been caused by the accused are also ruled out. Such medical evidence is also very important in assessing the testimony of eye- witnesses and in determining whether the testimony of eye-witnesses can be safely accepted. Moreover, it is settled law of criminal jurisprudence as has been recognized by this Court in State of U.P. Vs. Krishna Gopal, (supra) that “A person has, no doubt, a profound right not to be convicted of an offence which is not established by the evidential standard of proof beyond reasonable doubt.” After meticulously scrutinizing the facts and circumstances of the present case, and keeping in mind the proposition of law as observed in Yogesh Singh Vs. Mahabeer Singh & Ors. (supra), we are of the considered opinion that there are not only actual but substantial doubts as to the guilt of the respondents herein. We are, therefore, unable to find any evidence as to how the deceased was killed and by whom. The unfortunate man succumbed to injuries but the substantial doubts, mentioned above, confer a right upon the accused-respondents to be held not guilty.

REPORTABLE
                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION

                       CRIMINAL APPEAL NO.1794 of 2013
MACHINDRA                                 ...APPELLANT(S)
                                   VERSUS
SAJJAN GALPHA RANKHAMB & ORS.     ....RESPONDENT(S)







                               J U D G M E N T

Pinaki Chandra Ghose, J.
The instant appeal is directed against the judgment  and  order  dated  24th
February, 2011 passed by the High Court of Judicature of  Bombay,  Bench  at
Aurangabad, in Criminal Appeal No.333 of 2010, whereby the High Court  while
allowing the appeal of respondent Nos.1 & 2 herein, set-aside  the  judgment
and order of conviction and sentence  dated  24.08.2010  passed  by  learned
Sessions Judge, Osmanabad, and acquitted  them  of  the  offence  punishable
under Section 302 read with Section 34 of the Indian Penal Code  (for  short
“IPC”).

Brief facts necessary for disposal of the present appeal are as follows:
Parties herein are close relatives as respondent No.1 is the  brother-in-law
of the appellant herein (his sister having married  to  the  appellant)  and
respondent No.2 is the son of respondent No.1.  It  appears  that  appellant
had purchased 3 acres of land from his father-in-law (father  of  respondent
No.1) about 20 years before the date of occurrence. On account of  the  said
transaction, respondent No.1 was not  happy,  which  is  stated  to  be  the
alleged enmity between the parties. Appellant had two sons,  namely,  Gorakh
and Dattatreya. On 21.04.2007, a complaint was lodged by  the  appellant  at
Osmanabad Rural Police Station stating that the complainant,  his  wife  and
other relatives had  gone  to  attend  the  marriage  of  his  granddaughter
Rupabai, while his younger son Dattatreya remained at home. After  attending
the marriage, when  they  came  back,  one  Balu  Shekha  Solawar  told  the
complainant that accused Sajjan and his son Kakasaheb had killed  Dattatreya
in the field of  Sanjay  Sambhaji  Jethithor.  The  complainant  immediately
rushed towards the spot and found the dead body of Dattatreya lying  on  the
field.  The villagers who were present on  the  spot  told  the  complainant
that accused killed Dattatreya. On the basis  of  the  complaint,  Osmanabad
Rural Police Station registered the  case  as  Crime  No.36  of  2007  under
Section 302 read with Section  34  of  IPC  against  respondent  Nos.1  &  2
herein, who are none other than maternal uncle of deceased and his  son  for
causing death of  the  deceased  with  stick  and  Khil  (yoke  pin).  After
completion of the investigation by the Police Inspector of Osmanabad  Police
Station (PW-19), final report  was  submitted  before  the  Court  of  Chief
Judicial Magistrate, Osmanabad. Since the offence  was  exclusively  triable
by the Court of Sessions, the case was committed to  the  Court  of  learned
Sessions Judge, Osmanabad. Twenty witnesses  were  examined  on  prosecution
side and five witnesses were examined on defence side. The learned  Sessions
Judge vide his judgment and order  dated  24.08.2010,  convicted  respondent
Nos.1 and 2 herein for  offence  punishable  under  Section  302  read  with
Section 34 of IPC and sentenced them to suffer imprisonment for life and  to
pay a fine of Rs.1,000/- each, in  default  to  make  payment  of  fine,  to
suffer further imprisonment for two months.

Being aggrieved by the judgment and order of conviction and sentence  passed
by the learned Sessions Judge, Osmanabad, the accused respondents  preferred
Criminal Appeal No.333 of 2010  before  the  High  Court  of  Judicature  of
Bombay, Bench at Aurangabad. The High Court allowed the  said  appeal,  set-
aside the judgment and order of conviction  and  sentence  dated  24.08.2010
passed by learned Sessions Judge, Osmanabad, and acquitted respondent  Nos.1
& 2 of the offence punishable under Section 302  read  with  Section  34  of
IPC. Hence, the present appeal by the father of  the  deceased  who  is  the
complainant in this case.

We  have  heard  Mr.  Rajat  Kapoor,  learned  counsel  appearing  for   the
complainant-appellant  herein  and  Mr.  M.Y.  Deshmukh,   learned   counsel
appearing for respondent Nos.1 & 2 herein, at length. We have  also  perused
the judgments of both the High  Court  and  the  Trial  Court  as  also  the
evidence on record.

Learned counsel appearing for the appellant submitted that  the  High  Court
failed to consider the autopsy conducted on the  body  of  deceased  wherein
compound fracture of skull over left temporal bone  was  found  which  shows
the gravity of the offence.  He  further  submitted  that  the  recovery  of
weapon of offence made at the instance of the accused-respondents  was  also
ignored by the High  Court.  Moreover,  the  High  Court  erred  grossly  in
holding that testimonies of PW-4 and PW-10 falsify each other.

Per contra, learned counsel appearing for the respondents submitted that PW-
4 and PW-10 ought to have been disbelieved being  interested  witness  since
both of  them  were  tenants  of  the  land  owned  by  deceased.  Moreover,
considering the gravity of head injuries, if minutely  perused,  it  is  not
possible for any person to  have  survived  for  five  minutes.  He  further
submitted that the evidence of the alleged eye-witnesses,  i.e.  PW-3,  PW-4
and PW-10, is totally  concocted  and  not  supported  by  medical  evidence
because PW-6 - Doctor has not mentioned the probable age and  cause  of  the
injuries. Furthermore, the Investigating Officer (PW-19) has nowhere in  his
examination before the Trial Court mentioned about any  eye-witness  to  the
incident. As per  the  admission  of  said  Investigating  Officer,  he  was
informed about the incident by some unknown person. If  this  is  the  case,
then the testimony of eye-witnesses appears to be false and unbelievable.

Learned counsel for the respondents concluded  his  arguments  stating  that
the prosecution story is again doubtful for two more reasons: (i)  PW-3  had
informed about the alleged incident to  one  Chandrakant  Gophane,  however,
the prosecution had not  examined  him;  (ii)  There  was  no  propriety  in
sending the accused for medical examination on 21.04.2007,  when  admittedly
the accused were arrested on 22.04.2007 which is proved by testimony of  PW-
19 and corroborated by the testimony of PW-20.

We have  noticed  that  the  Trial  Court  after  relying  mainly  upon  the
testimony of PW-3, PW-4 and PW-10, found that  the  prosecution  has  proved
its case beyond reasonable doubt, corroborated by the  medical  evidence  of
doctor (PW-6) who conducted the autopsy of the deceased and  by  the  report
of  chemical  analyzer.  It  was  held  that  the  respondents  with  common
intention to kill the deceased had caused injuries with stick and  Khil,  to
which the deceased succumbed later on.

The High Court has, however, reversed the order of conviction while  holding
that no reliance could be placed on the evidence of  PW-3.  The  High  Court
further held that both PW-4  and  PW-10  had  falsified  evidences  of  each
other. Non-examination of weapon recovered from the  place  of  incident  by
the Chemical Analyzer also made the case doubtful as per the opinion of  the
High Court.

Before answering the question that whether the High  Court  was  correct  in
allowing the appeal of the respondents herein, we wish  to  supply  emphasis
on one of the cardinal principles of criminal  jurisprudence  pertaining  to
the ‘burden of proof on the prosecution’ in criminal cases. This  Court  has
in a recent judgment in the case of Yogesh Singh Vs. Mahabeer Singh &  Ors.,
AIR 2016 SC 5160 = 2016 (10) JT 332, reiterated the said  principle  in  the
following words:
“It is a cardinal principle of criminal jurisprudence that the guilt of  the
accused must be proved beyond all reasonable doubts. However, the burden  on
the prosecution is only to establish its case beyond  all  reasonable  doubt
and not all doubts. Here, it is worthwhile  to  reproduce  the  observations
made by Venkatachaliah, J., in State of U.P. Vs.  Krishna  Gopal  and  Anr.,
(1988) 4 SCC 302:

‘25. … Doubts would be called reasonable if they are free from  a  zest  for
abstract speculation. Law cannot afford any favourite other than  truth.  To
constitute  reasonable  doubt,  it  must  be  free  from  an   overemotional
response. Doubts must be actual and substantial doubts as to  the  guilt  of
the accused person arising from the evidence, or from the  lack  of  it,  as
opposed  to  mere  vague  apprehensions.  A  reasonable  doubt  is  not   an
imaginary, trivial or a merely possible doubt; but a fair doubt  based  upon
reason and common sense. It must grow out of the evidence in the case.


26. The concept of probability, and the degrees of it, cannot  obviously  be
expressed in terms of units to be mathematically enumerated as to  how  many
of such  units  constitute  proof  beyond  reasonable  doubt.  There  is  an
unmistakable  subjective  element  in  the  evaluation  of  the  degrees  of
probability and the quantum of proof.  Forensic  probability  must,  in  the
last analysis, rest on a robust common sense and, ultimately on the  trained
intuitions of the judge. While the protection given by the criminal  process
to the accused persons is not to be eroded, at  the  same  time,  uninformed
legitimization of trivialities would make a  mockery  of  administration  of
criminal justice.”


Keeping in mind the aforesaid position of law,  we  shall  now  examine  the
arguments advanced and materials on record to see whether  the  findings  of
the High Court call for interference in the facts and circumstances  of  the
present case.

We have noticed that there are contradictions in  the  depositions  of  PW-4
and PW-10  and  none  of  them  is  eye-witness  to  the  alleged  incident.
Furthermore, PW-20 has proved in his deposition that he  medically  examined
respondent Nos.1 & 2 herein on 21.04.2007 and not on  22.04.2007  when  they
were arrested. It is a matter of surprise to us  that  prosecution  had  not
examined one Sanjay Jetithor in whose field the alleged  incident  occurred.
Non-examination of this  material  witness,  who  could  have  unfolded  the
relevant  facts  of  the  case  necessary  for   adjudication,   makes   the
prosecution version doubtful. It is also pertinent to mention here that  PW-
3, who is an alleged eye-witness to the  incident,  had  in  his  deposition
admitted that  he  passed  the  information  on  phone  to  one  Chandrakant
Pandurang Gophane who was never examined by the Trial Court. After  perusing
the  deposition  of  PW-3,  we  have  noticed  that  this  witness  and  the
respondent accused were not in cordial terms as their cattle used  to  enter
the fields of one another and chapter case was filed  against  the  wife  of
accused on that count.

On perusal of the record, it has further been noticed by us that  there  was
six days’ delay in lodging the FIR  which  remained  unexplained  throughout
the trial and in the appeal before the High Court. One last  fact  which  is
imperative and crucial to be mentioned here is that opinion on the cause  of
injuries was neither mentioned by doctor PW-6  in  his  deposition,  nor  in
post-mortem report. In criminal cases pertaining to offences  against  human
body, medical evidence has decisive role to  play.  A  medical  witness  who
performs a post-mortem examination is a  witness  of  fact  though  he  also
gives an opinion on certain aspects of the case.  This  proposition  of  law
has been stated by this Court in  Smt.  Nagindra  Bala  Mitraand  Vs.  Sunil
Chandra Roy & Anr., 1960 SCR (3) 1,  as follows:
“The value of a medical witness is not merely a check upon the testimony  of
eye witnesses; it is also independent testimony  because  it  may  establish
certain facts quite apart from the other oral evidence. If a person is  shot
at a close range, the mark of tattooing found by the medical  witness  would
draw that the range was small, quite apart from any other  opinion  of  his.
Similarly, fractures of bones, depth and size of the wounds would  show  the
nature of the weapon used. It is wrong  to  say  that  it  is  only  opinion
evidence; it is often direct evidence of the facts found upon  the  victim's
person.”

Further it was observed in the case of State of U.P.  Vs.  Krishna  Gopal  &
Anr., (1988) 4 SCC 302, in the following words :
“24. It is trite that where the eye-witnesses’  account  is  found  credible
and trustworthy, medical-opinion pointing to  alternative  possibilities  is
not accepted as conclusive. Witnesses, as Bentham said,  are  the  eyes  and
ears of justice. Hence the importance and primacy  of  the  orality  of  the
trial-process. Eye-witnesses’ account would require  a  careful  independent
assessment  and  evaluation  for  their  credibility  which  should  not  be
adversely prejudged making any other evidence,  including  medical-evidence,
as the sole touch-stone for the test of such credibility. The evidence  must
be tested for its inherent consistency and the inherent probability  of  the
story; consistency with the account of other witnesses held  to  be  credit-
worthy;  consistency  with  the  undisputed  facts;  the  ’credit’  of   the
witnesses; their performance in the witness-box; their power of  observation
etc. Then the probative value of such evidence becomes eligible  to  be  put
into the scales for a cumulative evaluation.”

But looking at the post-mortem report, cause of injuries was not stated  nor
was any opinion formed to create independent testimony.  We  would  like  to
emphasize on the vital role played by opinion of the expert which is  simply
a conclusion drawn  from  a  set  of  facts  coming  to  his  knowledge  and
observation.  Expert’s  opinion  should  be  demonstrative  and  should   be
supported by convincing reasons. Court cannot be expected to  surrender  its
own judgment and delegate its authority to a third  person,  however  great.
If  the  report  of  an  expert  is  slipshod,  inadequate  or  cryptic  and
information on similarities or  dissimilarities  is  not  available  in  the
report of an expert then his opinion is  of  no  value.  Such  opinions  are
often of no use to the  court  and  often  lead  to  the  breaking  of  very
important links of prosecution evidence which are led  for  the  purpose  of
prosecution.  Therefore,  we  are  of  the  considered  opinion   that   the
prosecution has failed to prove that death was caused due  to  the  injuries
inflicted by the recovered weapons.

Furthermore, looking at the facts and circumstances of this  case,  we  have
noticed that PW-3 the eye-witness to the incident has neither stated  as  to
when the accused came with alleged weapons nor he extended any help  to  the
deceased. Rather he fled away from the spot as per his deposition, and  came
to know about the death of the deceased in the evening. This  peculiar  fact
of  the  case  completely  over-rides  the  direct  evidence  rule,  because
ultimately probabilities creating doubts  with  respect  to  the  cause  and
modus-operandi of offence increases when alleged eye-witness flee away  from
the place of occurrence. Where the medical evidence is  such  that  it  does
not give any clear opinion with respect to the  injuries  inflicted  on  the
body of victim or deceased, as the case may be, the possibilities  that  the
injuries might have been caused by the accused are  also  ruled  out.   Such
medical evidence is also very important in assessing the testimony  of  eye-
witnesses and in determining whether the testimony of eye-witnesses  can  be
safely accepted. Moreover, it is settled law of  criminal  jurisprudence  as
has been recognized by this Court  in  State  of  U.P.  Vs.  Krishna  Gopal,
(supra) that “A person has, no doubt, a profound right not to  be  convicted
of an offence which is not established by the evidential standard  of  proof
beyond reasonable doubt.” After  meticulously  scrutinizing  the  facts  and
circumstances of the present case, and keeping in mind  the  proposition  of
law as observed in Yogesh Singh Vs. Mahabeer Singh & Ors.  (supra),  we  are
of the considered opinion that there are not  only  actual  but  substantial
doubts as to the guilt of the respondents herein. We are, therefore,  unable
to find any evidence as to how the deceased was  killed  and  by  whom.  The
unfortunate man succumbed to injuries but the substantial doubts,  mentioned
above, confer a right upon the accused-respondents to be held not guilty.

Thus, we see no reason to interfere with the findings of the High Court  as,
in our opinion, the High Court after correct appreciation  of  evidence  has
rightly acquitted the accused-respondents, giving  them  benefit  of  doubt.
This appeal is devoid of  any merit which is, accordingly, dismissed.



. . . . . . . . . . . . . . . . . . . . .J
(Pinaki Chandra Ghose)




. . . . . . . . . . . . . . . . . . . . .J
(Rohinton Fali Nariman)
      New Delhi;
April 19, 2017.

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