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Wednesday, May 24, 2017

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


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