Mahindra vs Sajjan Galfa Rankhamb & Ors on 19 April, 2017

            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.

Article source: Supreme Court

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