2003 ALL SCR (Cri) 73


Appeal (Crl.) 486 of 1996

20th February, 2003

Y.K. Sabharwal, J.

H.K. Sema, J.


State of U.P.

Premi & Ors.

Penal Code (1860)

Criminal P.C. (1973)

Section 34 Penal Code (1860)

Section 302 Penal Code (1860)

Section 304 Penal Code (1860)

Section 307 Penal Code (1860)

Section 452 Penal Code (1860)

Section 161 Criminal P.C. (1973)

Accused, Conviction, Conviction and Sentence, Admission, Examination, Jurisprudence, Murder, Police, Procedure, Sentence, State, Statement, Witness

Y.K. Sabharwal, J.:- Respondents 1 and 2 in this appeal who are brothers were convicted by the Sessions C ourt for the offence under Sections 452, 307 read with Section 34 and Section 302 read with Section 34 IPC. Their father, respondent no.3, was also convicted for offence under Sectio ns 452, 307 and Section 302 read with Section 34 IPC. Their conviction and consequently the sentence that had been imposed on them by the Sessions Court was set aside in appeal by the High Court in terms of the impugned judgment. The State is in appeal to this Court on gran t of leave. During the pendency of the appeal, respondent no.3, Devi Das died. The appeal thus abates against him.

2. The prosecution case in brief is that respondents 1 and 2, their father and another person entered the house of Raghubir (PW3) at about midnight of 15th-16th January, 1977 whil e he was sleeping with his wife and children. After removing the quilt, the respondents hel d fast PW3 and he was hit on the head with the butt of the country-made pistol. When Budh W ati @ Ved Wati, wife of PW3, came to save him, she was also assaulted with butt of the pisto l. On hearing their cries, Mathuri (PW4) and Balwant, living in the same compound, came whereupon the accused ran away. PW3 and his wife were assaulted because PW3 was cited as a prosecution witness against the respondents and their father in the case of murder of one Rajinder son of Prem Sahai where they were accused. The place of occurrence is at a dis tance of about 9 kilometer from the Police Station. The FIR was recorded on the stateme nt of PW3 at 8.30 a.m. Budh Wati succumbed to her injuries at about 9.00 p.m. on 16th January.

3. The Sessions Court, on appreciation of the evidence of PW3, PW4, Police officials an d the medical evidence, convicted the three accused. The fourth person was not identified and, thus, could not be apprehended.

4. In reversing the judgment of the Sessions Court, the factors that have been taken in to consideration and weighed with the High Court are :

1. Absence of proof of light;

2. Improvements and contradictions in the testimony of prosecution witnesses; and

3. Difference between the ocular and medical evidence regarding injuries.

5. The incident took place around midnight. The reasons for the High Court’s coming to the conclusion that there was no source of light available to the witness to recognize the assailants are :

a) Non-mention of the presence of electric bulb in the FIR;

b) Admission of PW3 that electric connection was not available in his house before inci dent; and

c) Fact of source of light being not mentioned in the statement of PW3 recorded during investigation under Section 161 of the Criminal Procedure Code.

6. PW7, S.I. S.P. Singh, inspected the place of occurrence on 16th January and prepared a site plan which mentions one electric bulb in the Kothri of Raghubir, one in his courtyar d and another in the Kothri of PW4. These electric points have been shown in site plan (Exh ibit Ka-10). The witness was hardly challenged. The existence of the electric bulbs was al so not seriously challenged in the cross-examination of other witnesses. The omission to me ntion about light in the FIR or in the statement of PW3 recorded by the police under Section 161 Cr.P.C. was wholly inconsequential. PW3 had made a categorical statement of having reco gnized the assailants. There is also no admission in the statement of PW3 about the non-ava ilability of the electric connection. The finding as also the reasoning is wholly contrary to evidence and established facts. The High Court has held that the statement of PW3 wa s recorded on 9th May, 1979 and he admitted that the electric connection was made available about one year ago and from this, the admission of PW3 was inferred about the non-availabili ty of the electric connection. The testimony of PW3 clearly shows that when he stated that the electric connection was made available less than a year ago he was referring to the date of the incident and not the date when his statement was recorded. After deposing about the time when the electric connection was installed, PW3 further stated that he told the Po lice about the electric light being on. By no stretch of imagination anyone can come to the conclusion that PW3 admitted that when occurrence took place, there was no electric connect ion. The mention of the electric bulbs at various places, as earlier noticed, was also made in the site plan prepared by the Police. In this view, the High Court committed grave ille gality in coming to the conclusion that in absence of light, the assailants could not be rec ognized.

7. For reaching the conclusion that there are improvements and contradictions in the st atement of the prosecution witnesses, the High Court has completely misread the FIR and has come to the conclusion that the factum of the respondents having caught hold of PW3 has not been mentioned in the FIR. In fact, FIR specifically states that the respondents caugh t hold of PW3. The High Court seems to have made too much of the minor contradictions about the non-mention of the dandas in the FIR. The so called contradictions and improvements, a ccording to the High Court, are the result of darkness in view of the absence of the electri c connection, a finding which is not at all sustainable as noticed above. The further findi ng of the High Court that testimony of PW3 is uncorroborated is again unsustainable. PW4 wa s living in the same compound. His name is mentioned in the FIR. He is deposed to have see n the respondents coming out of the house of PW3. PW4 is next door neighbour of PW3. He is a natural witness of the occurrence. A well reasoned judgment of the Sessions Court on cri tical analysis of the evidence was reversed by the High Court on consideration of improvemen ts and contradictions which are minor and natural and rather go to show the truthfulness of the evidence.

8. Reverting to the third factor, namely, difference between medical and ocular evidenc e, the High Court has held that the injuries were caused by the sharp edged weapons and, the refrom, concluded that the ocular testimony of PW3 was contradicted by medical evidence and, thus, labelled PW3 as an unreliable witness.

PW8, Dr. Arjun Kumar, on medical examination on 16th January at about 10.05 a.m. found the following injuries on PW3:

"Incised wound over right frontal region of scalp, 9 cms above root of nose, size- 6 cms x 1 cm x bone deep, fracture of the underlying bone is visible, patient complained of bleeding from both nostrils, clotted blood was present in both sides of the nose, edges of the wound were clean cut, wound is gaping, oblique in direction as shown in the figure."

9. On medical examination of Budh Wati at about 10.25 a.m. on the same date PW8 found t he following injuries :

"(1) Incised wound over left occipital region of scalp, 8 cm above and behind left ear, s ize 5 cms x 1 cm x bone deep, edges were clean cut, wounds were gaping, suspected fracture of underlying bone, x-ray was advised, injury was kept under observation, the injury appeare d to have been inflicted with a sharp-edged weapon, direction was forward backward.

2) Abrasion over right temple, 1 cm outer from the outer angle of the right eye, size 3 cms x 2 cms blackish colour, it was a simple injury, must have been caused with a blunt wea pon..

3) Abrasion over right side of the forehead, 2 cms above the right eyebrow, size 2 cms x 1 cm, blackish colour, simple, caused by a blunt object. Patient was in her sense, but was not able to speak. Pulse rate was 72 per minute, respiration-24 per minute, eye lids were normal, and were reacting against light, all the in juries were inflicted within 24 hours."

10. PW3 and his wife were sent to the District Hospital, Budaun. Later she died at 9 p. m. on the same date. Dr. B.K. Srivastava (PW1) conducted the autopsy and as per postmortem report prepared by him found following injuries on the deceased :

"(i) Lacerated wound 6 cms x 1 cm x 1/2 cm on the left side of the head, 9 cms above the left eye.

(ii) Contusion 3 cms x 1/2 cm on the right side of forehead, 3 cms above the right eyebr ow.

(iii) Contusion 3 cms x 11/2 cms on the right side, 3 cms at the tragus from the right ear.

(iv) Clotted blood present in the right ear.

(v) Abrasion with contusion, 10 cms x 3 cms on the upper arm, 19 cms above the right elb ow joint.

(vi) Abrasion 2 cms x 1/2 cm on the inner aspect of little finger of left hand. On the internal examination, he found

(1) Fracture present 10 cms long on the left perital bone, extending upto occiptal bone.

(2) Fracture 5 cms long, on the left side of the perital bone upto Lamsdard puture.

(3) Fracture 2.1/2 cms long, obliquely, between injuries 1 and 2 on perital bone.

(4) Base of skull on the right side was broken. Clotted blood was found below the skin of the scalp."

11. The medical evidence produced by the prosecution comprises of the aforesaid two doct ors PW1 and PW8 besides Dr. S.C. Sharma (PW9) who had examined injured PW3 and had also depo sed on the basis of x-ray reports and other documents. The High Court for the view that the injury was inflicted by a sharp edged weapon has placed strong reliance on the testimony of PW8. Learned counsel for the respondents has also placed strong reliance on the testimony of the said doctor. Before considering this contention and examining the testimony of P W8, it would be useful to notice as to what has been deposed by PW1 and PW9. It is also to be kept in mind that the real question is whether the testimony of PW8 is such which if acce pted would either belie the ocular testimony of PW3 or create reasonable doubt on creditabil ity of PW3 the said testimony can be trusted and relied upon despite the deposition of PW8.

According to Dr. Srivastava (PW1) who conducted the postmortem, wife of PW3 died due to frac ture in the bone of skull, perital bone and occipital bone and bleeding and shock. Inte rnal fractures 1 to 4 were the resultant effects of injuries 1, 2 and 3 and these injuries, according to the doctor, must have been caused with a blunt weapon. His categorical testimo ny is that none of these injuries was incised wound caused with a sharp weapon. He has furt her deposed that it becomes difficult to say whether a wound on a bony part is lacerated or incised one.

12. PW9 (Dr. S.C. Sharma) who, at the relevant time, was a senior surgeon at Budaun Hospital had examined PW3 who was treated and discharged a month later on 16th February, 1977. He a lso examined the x-ray of the head of PW3 which showed the fracture of the frontal bone. Ac cording to Dr. Sharma, depressed fractures are generally caused with blunt weapons. He furt her deposed that such an injury is possible with a blunt object like the butt of the pistol.

13. In cross-examination, he stated that the weapon may be blunt or sharp edged, its heavy blo w can cause the fracture and depressed fracture will be caused when there is a full-blooded blow on the bone. Now turning to the evidence of Dr. Arjun Kumar (PW8) on which strong reli ance has been placed, in his cross-examination, he stated that injury No.1 is clean-cut woun d which he wrote after examining with a magnifying lens. He, therefore, deposed that the in juries were caused with a sharp edged weapon and not with a blunt object. It is on this par t of the evidence of PW8 that strong reliance has been placed by Mr. Sinha, learned counsel for the respondents. However, PW8 has further deposed that if the butt had a projecting tin -piece, it could cause such an injury and that the tin piece must have been fixed over so mu ch part of the width of butt as could cut upto the bone and that weapon may be sharp-edged o r blunt, its thrust can cause fracture. He has further deposed that injury with a blunt obj ect sometimes appears to be incised wound. The testimony of PW8 that the injuries were caused with sharp-edged weapon and not with a blunt weapon, is in the nature of the opinion of one of the doctors. In any case, testimony of PW8 cannot be read in isolation. His evid ence is to be read as a whole and when so read it becomes clear that the injuries of the kin d inflicted on PW3 and the deceased could be caused with the butt of the revolver. It has a lso to be borne in mind that generally injury on head is caused by a blunt weapon.

14. Learned counsel for the respondents has placed reliance on Modi’s Medical Jurisprudence and Toxicology (22nd Edition) in support of the contention that the clean cut edges of the wound and the wound being gaping, as deposed by PW8, shows that it was an incised wound. Accordi ng to Modi, the edges of a wound made by a heavy cutting weapon, such as an axe, hatchet or shovel, may not be as smooth as those of a wound caused by a light cutting weapon, such as a knife, razor etc. and may show signs of contusion. However, while dealing with incised looking wound, according to Modi, occasionally, on wounds produced by a blunt weapon or by a fall, the skin splits and may look like incised wounds when inflicted on tense structures covering the bones, such as the scalp, eyebrow etc. Mr. Sinha, however, submits that if that had been so, the edges of the wound would have been irregular and hair bulbs would hav e been found crushed when the injuries were examined by magnifying glass by PW8. The learne d counsel, however, overlooks the fact that the main evidence of all the doctors is that the injuries in question could be inflicted with the butt of the revolver and it would look lik e incised wound having been inflicted with a sharp-edged weapon. Besides the medical eviden ce, what is also to be kept in view is that in the FIR recorded on the oral statement of PW3 immediately after the occurrence, it was specifically stated that the injuries were caused by the butt of the country made pistol. The medical evidence and the ocular evidence is who lly consistent as was rightly held by the Court of Sessions. We are conscious of limitation s while dealing with an appeal against a judgment of acquittal. Having, however, found that miscarriage of justice has resulted by an entirely faulty and erroneous appreciation of evi dence by the High Court, it becomes our duty to interfere in the matter. From the evidence , the only view possible is one taken by the Sessions Court.

15. On the facts and circumstances of the case, it is also not possible to accept the c ontention that the respondents had no intention to kill and, therefore, their conviction des erves to be altered to be one falling under Section 304 IPC. As already noticed, at the dea d of the night the respondents and their father went to the house of PW3 with a country made pistol and with force inflicted such injuries on head which resulted in death of wife of PW 3. The mere fact that only a single blow was inflicted on the head by itself is not eno ugh to alter the conviction from Section 302 to Section 304 IPC.

16. For the aforesaid reasons, we are unable to sustain the judgment of the High Court. The appeal is accordingly allowed and setting aside the impugned judgment of the High Court , the conviction and sentence imposed on respondents 1 and 2 by the Additional District & S essions Judge, Budaun is restored. The bail bonds of respondents 1 and 2 are cancelled.

17. They shall be taken into custody forthwith to serve the remaining part of the sentence.