A reference, with regard to the above position of law, may be made to the case of Muluwa, S/o Binda and others Vs. The State of Madhya Pradesh, [AIR 1976 SC 989], wherein the Supreme Court has observed as follows :
"It is elementary that the evidence of an infirm witness does not become reliable merely because it has been corroborated by a number of witnesses of the same brand; for, evidence is to be weighed not counted. Since the evidence of P.Ws. 5 and 6 suffered from the same infirmities as that of Smt. Jugatia, it cannot be said that the trial Judge had no basis, whatsoever, for stigmatising it as unreliable."
(Emphasis is added)
49. Situated thus, it is clear that merely because PW 3, PW 5 and PW 6 have given evidence corroborating each other's evidence, their evidence cannot be made basis for holding them truthful witnesses, when each one of them is a witness, who is neither wholly reliable nor wholly unreliable, for, one infirm witness cannot be treated to have corroborated evidence of another infirm witness.
Patna High Court
Manoj Kumar Bharti vs State Of Bihar on 16 February, 2015
2. The case of the prosecution may, in brief, be Patna High Court CR. APP (DB) No.465 of 1993 dt.16-02-2015 described as follows:
(i) On 20.08.1998, at about 10.00 AM, when Pankaj Kumar Singh, younger brother of Nitya Nand Singh (PW 9), was having his meals, their mother, Chameli Devi (PW 4), went to fetch water from the Government handpipe, situated in front of the house of accused Mahendra Bharti, where accused Mahendra Bharti was taking his bath. Accused Mahendra Bharti told Chameli Devi (PW 4) that she should take water, when he finished his bath; but Chameli Devi insisted on fetching water. Enraged by the insistence of Chameli Devi that she would take water and the interruption caused by her in accused Mahendra Bharti taking his bath, accused Mahendra Bharti started abusing Chameli Devi and also assaulted her. This apart, accused Mahendra Bharti exhorted the members of his family to bring lathi, whereupon accused persons, namely, Manoj Bharti, Manohar Bharti, Madam Kumari, Manorama Devi and Ram Prasad came to the handpipe. While accused Manoj Bharti was armed with garasa, accused Manohar Bharti was carrying a lathi; whereas the remaining accused were without any arms. Accused Madam Kumari and accused Manorama Devi gave Chameli Devi (PW 4) fist blows and slapped her and, then, dragged her away by catching a flock of her hair. As Chameli Devi (PW 4) raised hulla, Pankaj Kumar Singh and Nitya Nand Singh rushed to the handpipe. However, when they wanted to Patna High Court CR. APP (DB) No.465 of 1993 dt.16-02-2015 intervene in order to save their mother, Chameli Devi (PW 4), while accused Manoj Bharti gave a blow with his garasa on the head of Pankaj Kumar Singh, his co-accused, Manohar Bharti, assaulted Pankaj Kumar Singh by a tengari (axe) on the shoulder of Pankaj Kumar Singh. This apart, accused Mahendra Bharti assaulted Pankaj Kumar Singh by means of lathi.
(ii) Coupled with the above, accused Mahendra Bharti also assaulted Nitya Nand Singh, the informant, brother of Pankaj Kumar Singh (since deceased), by means of lathi.
(iii) On being so assaulted as described hereinbefore, Pankaj Kumar Singh fell down and became unconscious.
(iv) On hearing hulla, raised by the victims of assaults, the villagers from the neighbourhood, namely, Dinesh Singh, Nageshwar Singh and Jai Prakash Singh came out. The neighbours intervened and carried injured Pankaj Kumar Singh to Kahalgaon hospital, where he was given initial treatment and the injury, which Pankaj Kumar Singh has sustained on his head, was stitched. Thereafter, the said injured Pankaj Kumar Singh was shifted to, and treated at, Abhinandan Nursing Home, Patna, where he died on 9th day of the occurrence, i.e., on 29.08.1990.
(v) On the date of occurrence, i.e., on 20.08.1990 itself, at 3.00 PM, Nitya Nand Singh (PW 9) lodged a fardbeyan Patna High Court CR. APP (DB) No.465 of 1993 dt.16-02-2015 at Kahalgaon Police Station. Based on the said fardbeyan and treating the same as First Information Report, Sanhaula (Sanokhar) Police Station Case No. 69 of 1990 was registered, under Sections 147/148/149/323/324/504 of the Indian Penal Code, against the accused persons, namely, Manoj Kumar Bharti, Manohar Bharti, Mahendra Bharti, Ram Prasad Bharti, Manorma Devi and Madam Kumari. Since the said injured died, while remaining under treatment, Section 302 of the Indian Penal Code was added, on 31.08.1990, to the case aforementioned.
3. During investigation, inquest was held on the said dead body, which was also subjected to post mortem examination, and, on completion of investigation, police laid charge sheet, under Sections 147/148/149/323/324/504/302 of the Indian Penal Code, against accused persons, namely, Manoj Kumar Bharti, Manohar Bharti, Mahendra Bharti, Ram Prasad Bharti, Manorma Devi and Madam Kumari.
4. During trial, when a charge, under Section 302 read with Section 34 of the Indian Penal Code, was framed against accused Manoj Kumar Bharti, accused Manohar Bharti and accused Mahendra Bharti, they all pleaded not guilty thereto. A charge was also framed, under Section 302 read with Section 149 of the Indian Penal Code, against six accused persons, namely Manoj Kumar Bharti, Manohar Bharti and Patna High Court CR. APP (DB) No.465 of 1993 dt.16-02-2015 Mahendra Bharti, Ram Prasad Bharti, Manorama Devi and Madam Kumari. To the charge so framed, all the six accused pleaded not guilty.
5. In support of their case, prosecution examined altogether 16 witnesses, the relevant witnesses, out of them, being PW 1 (Mukesh Kumar Singh @ Guddu), who is brother of the deceased, PW 3 (Jai Mani Devi), who is wife of the informant, PW 4 (Chameli Devi), who is mother of the deceased. This apart, PW 6 (Sikandar Prasad Singh), PW 8 (Jai Prakash Singh) and PW 9 (Nitya Nand Singh) have also been examined as eye witnesses. So far as PW 7 (Nageshwar Prasad Singh) is concerned, he was cross-examined by the prosecution on the ground that he had turned hostile inasmuch as he did not support the case of the prosecution, whereas PW 6 and PW 8 did not fully support the prosecution's case. PW 10 (Dinesh Singh) was tendered as a witness, PW 13 (Dr. Arvind Kumar Singh) is the one, who had conducted post mortem (Ext-1); whereas PW 15 (Dr. I.D. Singh) is the one, who had examined the injured at the initial stage and PW 14 (Dr. Mahendra Prasad Singh) and PW 16 (Dr. R.P.Choudhary) are the ones, who had prepared X-ray report. While police officers, PW 11 (Tripurari Singh) and PW 12 (Jai Kishore Singh), are the investigating Officers, PW 12 (Jai Kishore Singh) is the one, who had submitted the charge sheet. So far as PW 2 (Vishwa Nath Patna High Court CR. APP (DB) No.465 of 1993 dt.16-02-2015Singh) is concerned, he has clearly deposed that he had not seen the occurrence as he was not present at or near the place of occurrence.
6. Having, however, arrived at the finding that the accused-appellant, Manoj Kumar Bharti, had been proved guilty of the charge, under Section 302 read with Section 34 of the Indian Penal Code, the learned trial Court convicted him accordingly. Following his conviction, sentence has been passed against him as mentioned above. Five of the accused persons, namely, Madam Kumari, Manorama Devi, Ram Prasad, Mahendra Bharti and Manohar Bharti were acquitted at the trial.
7. Aggrieved by his conviction and the sentence passed against him, the sole convicted person, Manoj Kumar Bharti, has preferred the present appeal.
8. We have heard Mr. Manohar Prasad Singh, learned Counsel, for the appellant, and Mr. Ajay Mishra, learned Additional Public Prosecutor, appearing on behalf of the State. We have also heard Ms. Soni Srivastava, learned Counsel, who has appeared as Amicus Curiae.
9. While considering the present appeal, what needs to be noted is that the brother of the deceased, Nitya Nand Singh (PW 9), who is the informant of the case, and his wife, Jai Mani Devi (PW 3), have been examined as eye-witnesses to Patna High Court CR. APP (DB) No.465 of 1993 dt.16-02-2015 the occurrence. This apart, the other persons, who have been examined as eye witnesses are PW 4 (Chameli Devi), mother of the deceased, and PW 5 (Sugriva Prasad Singh), father of the deceased. As has already been pointed out above, PW 6 (Sikandar Prasad Singh) and PW 8 (Jai Prakash Singh) have not fully supported the case of the prosecution; whereas PW 7 (Nageshwar Prasad Singh) has been declared hostile, because he did not at all support the prosecution's case.
10. What needs to be borne in mind is that so far as the eye witnesses, namely, PW 3 (Jai Mani Devi), PW 4 (Chameli Devi) and PW 5 (Sugriva Prasad Singh), including PW 9 (Nitya Nand Singh, the informant), are concerned, they are members of the same family. Merely because PW 3, PW 5 and PW 9 are members of the same family, their evidence cannot be discarded without a dispassionate consideration. However, their evidence need to be minutely scrutinized in order to ensure that in their zeal to get the accused convicted, they may not have given evidence, which were either false or not wholly true. We may, in this regard, refer to the case of Arjun Barik and Others v. State of Bihar, reported in 1994 Supp (2) SCC 372, wherein the Supreme Court, while dealing with the evidence of relatives of a deceased as witnesses or of interested witnesses, has observed, at paragraph 13, as follows:
"..................In this connection we Patna High Court CR. APP (DB) No.465 of 1993 dt.16-02-2015may point out that mere relationship of the witnesses cannot be the sole basis to discard the evidence if it is otherwise found to be believable and trustworthy.
However, when the Court has to appreciate the evidence of any interested witnesses it has to be very careful in weighing their evidence. In other words the evidence of an interested witness requires greater care and caution while scrutinising his evidence. The Court has to address to itself whether there are any infirmities in the evidence of such a witness; whether the evidence is reliable and trustworthy and whether the genesis of the crime unfolded by such evidence is probable or not. If the evidence of any interested witness or a relative on a careful scrutiny is found to be consistent and trustworthy, free from infirmities or any embellishment there is no reason not to place reliance on the same."
(Emphasis is supplied)
11. As PW 1, PW 2, PW 7 and PW 8 have turned hostile, because they have not supported the case of the prosecution, it logically follows that the evidence of PW 3, PW 4, PW 5 and PW 9 need to be scrutinized closely so as to determine if they could have been treated, or shall they be treated, as witnesses, whose evidence proved the accused- appellant, Manoj Kumar Bharti, as a person, who had given the Patna High Court CR. APP (DB) No.465 of 1993 dt.16-02-2015 fatal blow causing death of Pankaj Kumar Singh.
12. Let us start with the evidence of PW 9 (Nitya Nand Singh), the informant. According to PW 9, on 20.08.1990, at about 10.00 AM, when he was present at his house, his mother, Chameli Devi (PW 4) came home, Pankaj Kumar Singh was having his meals at the house and their mother, Chameli Devi (PW 4) told them that she had gone to fetch water from the handpipe situated in front of the house of accused Mahendra Bharti, Mahendra Bharti was taking bath at the said handpipe and when Chameli Devi (PW 4) wanted to take water, Mahendra Bharti stopped her from taking water saying that she could take water after he completed his bath. However, when PW 4 insisted on taking water, Mahendra Bharti threw the lota (pot), which had been carried to the handpipe by PW 4 in order to fetch water.
13. According to PW 9, his mother, (PW 4), also reported that not only Mahendra Bharti had thrown away the lota, but he had also assaulted her, when she had gone to fetch water for her younger son, Pankaj Kumar Singh (since deceased).
14. PW 9 has further deposed that his mother (PW
4) also informed them that accused Mahendra Bharti exhorted the members of his family to bring lathi.
15. It is in the evidence of PW 9 that he (PW 9) went Patna High Court CR. APP (DB) No.465 of 1993 dt.16-02-2015 to Mahendra Bharti's house, where he saw Manoj Kumar Bharti armed with garasa, Manohar Bharti armed with tengari (axe) and, with them was present Mahendra Bharti, armed with lathi. PW 9 had also noticed that accused Ram Prasad Bharti, Manorama Devi and Madam Kumari were present there. Following PW 9, his younger brother, Pankaj Kumar Singh, also reached there and when PW 9 protested, as to why their mother had not been allowed to take water and why she had been assaulted, accused Mahendra Bharti assaulted PW 9 with lathi and also exhorted his sons to assault them, whereupon accused Manoj Kumar Bharti gave a blow with garasa on the head of Pankaj Kumar Singh and accused Manohar Bharti assaulted on the shoulder of Pankaj Kumar Singh by the blunt edge of tengari (axe). Following the assaults on him, Pankaj Kumar Singh fell down and became unconscious.
16. It is in the evidence of PW 9 that injured Pankaj Kumar Singh was carried to Kahalgaon Primary Health Centre, where doctor examined and treated him, but Pankaj Kumar Singh succumbed to his injuries on the 9th day of the occurrence and, then, Sanha Entry No. 90, dated 29.08.1990, was made at Kankarbagh Police Station, Patna.
17. Though PW 4 (Chameli Devi) has claimed, in her evidence, that accused Mahendra Bharti had assaulted her and accused Manorma Devi and Madam Kumari had caught hold of Patna High Court CR. APP (DB) No.465 of 1993 dt.16-02-2015 her by her hair and dragged her also and torn her sari, no injury is proved to have been found on her person. In fact, she was never examined by any doctor. Even the Investigating Officer (PW 11) did not find any injury on her person. As far as assault on her son, Nityanand Singh (PW 9), is concerned, no injury has been proved to have been caused to him (PW 9) either inasmuch as no injury report has been proved in this regard nor any doctor has been examined to prove that PW 9 had been examined for any injury sustained by him. Noticeable, indeed, is that it is not even the case of prosecution that PW 4 and PW 9 had been examined and treated by any doctor. Were they not examined by any doctor, because they had not sustained any injury, or were they not examined because the injuries allegedly sustained by them, were superficial, or self-inflicted. The evidence on record furnishes no answer.
18. Since PW 4 and PW 9 are members of the same family and their evidence needs to be carefully scrutinized, there ought to have been some corroborative evidence of their having sustained injuries, irrespective of the fact that the injuries were caused on them in the occurrence or not. There is, however, no corroborative evidence on record. Though corroboration was disbelieved either by getting PW 4 and PW 9 examined by the doctor or with the help of the person, who, as Patna High Court CR. APP (DB) No.465 of 1993 dt.16-02-2015claimed by PW 4 and PW 9, have come to the place of occurrence.
19. Bearing, therefore, in mind the fact that neither PW 9 nor PW 4 is shown to have medically treated for the injuries allegedly suffered by them, though they claimed to have been assaulted by the accused persons aforementioned and there is no evidence corroborating the claim of PW 4 and PW 9 that they had been assaulted and injured in the occurrence aforementioned, we, now proceed further.
20. Coming to the evidence of Jai Mani Devi (PW3), the wife of the informant, we notice that she has also claimed that Manoj Bharti gave garasa blow on the head of Pankaj Kumar Singh and accused Manohar Bharti gave blow on the shoulder of Pankaj Kumar Singh by the blunt edge of an axe. Though PW 3 has claimed to have seen accused Manorama Devi and accused Madam Kumari assaulting her mother-in-law, Chinta Devi (PW 4), the fact remains that even the learned trial Court has disbelieved this part of the assertion of PW 3. The evidence of PW 3 and PW 4, therefore, suffer from unavoidably noticeable exaggeration and streaks of falsehood. Their evidence cannot, therefore, be implicitly relied upon nor can they be treated as wholly reliable witnesses.
21. As far as PW 1 (Mukesh Kumar Singh @ Guddu), brother of the said deceased, and PW 5, Sugriva Prasad Singh, Patna High Court CR. APP (DB) No.465 of 1993 dt.16-02-2015 father of the said deceased, are concerned, they have also asserted, in their evidence, that accused Manoj Bharti had given blow by means of a garasa on the head of the said deceased and accused Manohar Bharti had assaulted the said deceased on his shoulder by the blunt edge of tengari (axe).
22. Thus, PW 1, PW 4, PW 5, PW 6 and PW 9 have all claimed, in their respective evidence, that it was accused appellant, Manoj Kumar Bharti, who had given a blow by means of garasa on the head of Pankaj Kumar Singh and that it was accused Manohar Bharti, who had assaulted the said deceased on his shoulder by the blunt edge of tengari (axe).
23. In the backdrop of the above gathered evidence on record, we may, now, pause here to look at the evidence of the four doctors. PW 15 (Dr. I.D. Singh) was the doctor, who had examined and treated Pankaj Kumar Singh at Kahalgaon Primary Health Centre and prepared the injury report. PW 14 (Dr. Mahendra Prasad Singh) and PW 16 (Dr R.P. Choudhary) are the doctors, who had taken X-ray of the injuries sustained by Pankaj Kumar Singh and PW 13 (Dr. Arvind Kumar Singh) is the doctor, who had performed the post mortem examination on the dead body of Pankaj Kumar Singh.
24. According to PW 13 (Dr. Arvind Kumar Singh), on 29.08.1990, at 2.00 P.M., when he was posted as Medical Officer at Patna Medical College and Hospital, Patna, he had Patna High Court CR. APP (DB) No.465 of 1993 dt.16-02-2015 performed post mortem examination on the dead body of Pankaj Kumar Singh and found as follows:
"ON EXTERNAL EXAMINATION:
(i) One stitch wound 5" long placed longitudinally on left parieto occipital region of scalp;
(ii) One abrasion ½" x ½" placed on right side of chest near nipple;
(iii) One abrasion 2" x 1" placed on back of right wrist;
(iv) One abrasion 1" x 1" placed on the back of left wrist;
(v) One abrasion 1" x 1" over left back of shoulder;
ON DISSECTION:
All the visceral were found congested, heart- right full, left empty. Stomach contained yellow colour fluid four ounces approx. Mucous normal. On removing the stitches of injury no one, scalp haematozoa, brain matter started coming out. Left parietal bone trepined 2" x 2" area seen, brain underneath found lacerated."
25. The doctor (PW 13) has opined that the death was caused due to head injury resulting from injury No.
1. PW 13 has clarified that he could not give opinion regarding nature of weapon used for causing injury No. 1 due to surgical interference, however, he has suggested that the same may be obtained from surgeon concerned, who has interfered in this case. PW 13 had further opined that all other injuries were Patna High Court CR. APP (DB) No.465 of 1993 dt.16-02-2015 caused by hard blunt substances.
26. PW 14 Dr. Mahendra Prasad Singh, who has conducted X-ray on the skull of the deceased Pankaj Kumar Singh, has found, "depression in impression cast on the scalp due to pressure".
27. Close on the heels of the evidence of PW 13, PW 15 (Dr. I.D Singh), who had treated the deceased initially at Kahalgaon Primary Health Centre, had found the following injuries:"(i) One lacerated cut injury on the left parietal region with skin muscles and fracture of said bone with some brain matter missing 5" x 1";
(ii) Swelling with tenderness on right elbow joint 2" x 1";
(iii) One abrasion on right side chest near nipple ½" x ½";
(iv) One abrasion on right wrist 2"x1";
(v) One abrasion on left wrist;"
28. In the light of the ocular as well as medical evidence on record, we are, now, required to determine if the evidence on record proves beyond reasonable doubt that it was the accused-appellant, Manoj Kumar Bharti, who had given blow on the head of Pankaj Kumar Singh by means of garasa (axe), which resulted into the death of the said deceased.
29. With regard to the above, it deserves to be pointed out that a close scrutiny of the medical evidence on record shows that the said deceased had sustained as many as Patna High Court CR. APP (DB) No.465 of 1993 dt.16-02-2015 five injuries. While the injury on the left parieto occipital region of the scalp of the said deceased was found grievous, the remaining injuries were merely abrasions, which could have been caused by fall on hard object. Though the injury on the shoulder of the deceased was attributed to accused Manohar Bharti, there is no explanation as to how injury Nos.2, 3 and 4 were caused.
30. Be that as it may, the evidence of PW 15 (Dr. I.D Singh), who had examined the deceased, on 20.08.1990, at Kahalgaon Primary Health Centre, shows that he had found a lacerated cut injury on the left parieto occipital region with skin muscles and fracture of the said bone and some brain matters had come out. The question is: whether this lacerated injury could have been caused by garasa inasmuch as garasa is a sharp cutting weapon; whereas the opinion of the doctor is that the injuries were caused by the blunt object?
31. Ordinarily, unless shown otherwise, a sharp edged weapon is inferred to have been used to cause cut injury or incised wound unless evidence on record discloses that it was the blunt edge of the sharp cutting weapon, which was used in the assault. In other words, a sharp-edged weapon is, ordinarily, inferred to have caused cut or incised wounds and if a sharp-edged weapon causes lacerated injury, there must be evidence on record to show that it was the blunt edge of the Patna High Court CR. APP (DB) No.465 of 1993 dt.16-02-2015 sharp-cutting weapon, which had been used for the purpose of causing injury.
32. In the present case, there is not even an iota of material to show that the injury, which had been sustained by the said deceased on the left parietal occipital region of his scalp, was caused by the blunt edge of the garasa, which the accused-appellant, Manoj Kumar Bharti, had allegedly inflicted.
33. Naturally, therefore, if what the eye witnesses had deposed were true, then, the said deceased ought to have sustained cut injury or incised wound on his scalp; whereas the injury has been found to be lacerated cut injury. The question, therefore, is: whether a blunt weapon can also cause a cut injury or whether an injury caused by a blunt weapon can appear to be, or look like, a cut injury?
34. Our quest for an answer to the above question brings us to the Text book of Medical Jurisprudence and Toxicology (24th Edition, 2011, Page 528), which we have reproduce below:
"Incised Looking Wound.-
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, iliac crest, skin, and perineum, or by a fall on the knee or elbow when the limb is flexed.
But the edges of such wounds will be Patna High Court CR. APP (DB) No.465 of 1993 dt.16-02-2015 found irregular with a certain amount of bruising, and small strands of tissues may be seen at the bottom bridging across the margins, if examined with a hand lens,.
In the case of wounds of the scalp, the hari bulbs will be found crushed, if they are inflicted with a blunt weapon, but will be found cut and forced into the wound, if produced by a cutting weapon like a heavy edged axe or a chopper".
35. In the light of what Modi points out, in his treatise, it becomes more than transparent that on many occasions, on wounds being caused 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, iliac crest, skin, and perineum, or by a fall on the knee or elbow, when the limb is flexed. However, the edges of such wounds will be found irregular with a certain amount of bruising, and small strands of tissues may be seen at the bottom bridging across the margins, if examined with a hand lens. In the case of wounds of the scalp, the hari bulbs will be found crushed, if they are inflicted with a blunt weapon, but will be found cut and forced into the wound, if produced by a cutting weapon like a heavy edged axe or a chopper.
36. While on the above aspect of the case, one may take note of Kailash v. State of M.P., reported in (2006) 11 SCC 420), wherein the Supreme Court has observed, as Patna High Court CR. APP (DB) No.465 of 1993 dt.16-02-2015 under:
"21. The place of injury was on the parietal region. In certain situations, the wounds, produced by a blunt instrument, may simulate appearances of an incised wound. It was so stated in Glaister and Rentoul's Medical Jurisprudence and Toxicology in the following terms:
"Under certain circumstances, and in certain situations on the body, wounds produced by a blunt instrument may simulate the appearances of an incised wound. These wounds are usually found over bone which is thinly covered with tissue, in the regions of the head, forehead, eyebrow, cheek, and lower jaw, among others. When such a wound exposes hair bulbs at its edges, it is possible by examining these carefully to decide whether they have been cut or crushed and thus establish whether the wound was caused by a sharp or blunt instrument. As a rule, especially in the living subject, a wound produced by a blunt instrument will disclose some degree of bruising and swelling of the edges and the deeper tissues will be less cleanly severed than when divided Patna High Court CR. APP (DB) No.465 of 1993 dt.16-02-2015 by a sharp-cutting instrument."
(Emphasis is added)
37. Referring to the case of Shankaria v. State of Rajasthan, reported in (1978) 4 SCC 453, the Supreme Court, in Kailash (supra), has held, "38. After a careful examination of the statements of the doctors, the learned Judges of the High Court came to the conclusion that the injuries found on Swaran Singh and Jarnail Singh could be caused with the Ghota (Article 1). The injuries on the victims were located on the head. The scalp over the head is taut. Even an injury caused with a blunt weapon on the head, ordinarily produces a gaping wound, the edges of which if not carefully examined under a magnifying lens, can be mistaken for those of an 'incised' wound. This was the mistake committed by Dr. Jaswant Singh and he had courage enough to admit and correct it in further examination before the High Court. Thus considered, there was no contradiction between the confessional statement and the medical testimony in regard to the nature of the inflicting weapon. Rather, the medical evidence taken as a whole, including the statement of Dr. Jaswant Singh before the High Court, lends valuable support to the confession (Ext. P-39) inasmuch as it is stated therein that the injuries to the victims were caused with the Ghota (Article 1)."
Patna High Court CR. APP (DB) No.465 of 1993 dt.16-02-2015 (Emphasis is supplied)
38. Similarly, the Supreme Court, in State of U.P. v. Premi and Others, reported in (2003) 9 SCC 12, pointed out, at paragraph 15, thus, "Learned counsel for the respondents has placed reliance on Modi's Medical Jurisprudence and Toxicology (22nd Edn.) in support of the contention that the clean-cut edges of the wound and the wound being gaping, as deposed by PW 8, shows that it was an incised wound. According 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 an 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 have been found crushed when the injuries were examined by a magnifying glass by PW
8. The learned counsel, however, Patna High Court CR. APP (DB) No.465 of 1993 dt.16-02-2015overlooks 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 like an incised wound having been inflicted with a sharp-edged weapon. Besides the medical evidence, what is also to be kept in view is that in the FIR recorded on the oral statement of PW 3 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 wholly consistent as was rightly held by the Court of Session. We are conscious of limitations 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 evidence by the High Court, it becomes our duty to interfere in the matter. From the evidence, the only view possible is the one taken by the Sessions Court."
39. In the backdrop of what have been indicated above, it becomes abundantly clear that the medical evidence on record does not support the prosecution's eye-witnesses' alleged account of the occurrence inasmuch as the prosecution witnesses claim that the accused-appellant had given a blow by Patna High Court CR. APP (DB) No.465 of 1993 dt.16-02-2015 means of a garasa on the head of Pankaj Kumar Singh; but the medical evidence on record shows, in the absence of anything indicating to the contrary, that the injury sustained by the said deceased, on his scalp, was caused by a blunt object and not a sharp-edged weapon, such as, garasa.
40. At any rate, where evidence on record has given rise to two equally reasonable and possible views, it is trite that the view that supports the case of the defence has to be adopted by the Court. Applying this principle, too, it becomes clear that the accused deserved to be given the benefit of doubt.
41. Coupled with the above, it deserves to be pointed out that the learned trial Court has acquitted all the accused except the present appellant despite the fact that they were implicated by the persons, who had alleged to have seen the occurrence.
42. It was, therefore, imperative that the evidence on record be minutely scrutinized and no implicit reliance could have been placed on the testimony of any of the eye witnesses. Since the injury, sustained by the said deceased on his left parieto occipital region of the scalp, could have been caused by a blunt object, it clearly follows that PW 1, PW 3, PW 4 and PW 9, who claim to have had seen the accused-appellant giving a blow by means of garasa on the head of Pankaj Kumar Singh, Patna High Court CR. APP (DB) No.465 of 1993 dt.16-02-2015 cannot be safely relied upon inasmuch as the medical evidence on record clearly shows that the injury, on the head of Pankaj Kumar Singh, had been caused by means of a blunt object, whereas garasa is a sharp-edged weapon.
43. When the medical evidence on record contradicts ocular evidence, it is permissible to rely on the ocular evidence by ignoring or brushing aside the medical evidence provided that the ocular evidence is found to be wholly reliable and trustworthy.
44. In the present case, since the evidence of the alleged eye witnesses do not explain all the injuries, which had been sustained by the said deceased, their evidence clearly suffer from exaggeration and, at least, streaks of falsehood. None of them can, therefore, be regarded as a wholly reliable witness. At best, their evidence will fall in the category of those witnesses, who are neither wholly reliable nor wholly unreliable.
45. It is well settled that the witnesses, ordinarily, fall into three distinct categories, namely, (i) wholly reliable,
(ii) wholly unreliable and (iii) neither wholly reliable nor wholly unreliable. If the witness is wholly reliable, his evidence can be implicitly relied upon and such a witness's testimony can be made basis for conviction of an accused. Similarly, when a witness is found to be wholly unreliable, no reliance can at all Patna High Court CR. APP (DB) No.465 of 1993 dt.16-02-2015be placed on his evidence and his evidence has to be rejected outright. When, however, a witness is found to be neither wholly reliable, nor wholly unreliable, his evidence cannot be accepted as true unless his evidence is found to have been corroborated by some credible independent evidence, direct or circumstantial.
46. The evidence of the eye-witnesses, which the prosecution has adduced in the present case, cannot be safely relied upon unless the same is found to have been corroborated by some credible independent evidence, direct or circumstantial.
47. It is also an undisputed proposition of law that one infirm witness cannot be treated to have corroborated the evidence of another infirm witness meaning thereby that witnesses of same brand cannot be taken to have corroborated each other. Thus, when a witness is neither wholly reliable nor wholly unreliable, his evidence cannot be taken to have been corroborated by a witness of the same brand, namely, a witness, who is neither wholly reliable nor wholly unreliable, for, evidence is not to be counted, but weighed. It is not the number of the witnesses, which determines the outcome of a trial; rather, it is the inherent falsity or truth of the evidence given by the witness, which decides the outcome of trial. If each one of a large number of Patna High Court CR. APP (DB) No.465 of 1993 dt.16-02-2015 witnesses is found to be wholly unreliable, their evidence cannot become acceptable as true merely because a large number of similar brand of witnesses has corroborated each other.
48. A reference, with regard to the above position of law, may be made to the case of Muluwa, S/o Binda and others Vs. The State of Madhya Pradesh, [AIR 1976 SC 989], wherein the Supreme Court has observed as follows :
"It is elementary that the evidence of an infirm witness does not become reliable merely because it has been corroborated by a number of witnesses of the same brand; for, evidence is to be weighed not counted. Since the evidence of P.Ws. 5 and 6 suffered from the same infirmities as that of Smt. Jugatia, it cannot be said that the trial Judge had no basis, whatsoever, for stigmatising it as unreliable."
(Emphasis is added)
49. Situated thus, it is clear that merely because PW 3, PW 5 and PW 6 have given evidence corroborating each other's evidence, their evidence cannot be made basis for holding them truthful witnesses, when each one of them is a witness, who is neither wholly reliable nor wholly unreliable, for, one infirm witness cannot be treated to have corroborated evidence of another infirm witness.
50. Bearing in mind, what we have indicated above, Patna High Court CR. APP (DB) No.465 of 1993 dt.16-02-2015 when we turn to the evidence of PW 6, we notice that he had deposed that he had seen the deceased as well as the informant scuffling and fighting with the accused persons, but he admits that he had not seen the deceased being hit, though he saw him falling and becoming unconscious. He has also not disclosed that he had seen either side carrying any arms.
51. In the light of the evidence of PW 6, it clearly transpires that he (PW 6), who has not been declared hostile, does not support the evidence of PW 3, PW 4 and PW 9, who claimed to have seen the accused-appellant giving a blow by means of garasa on the head of the said deceased inasmuch as PW 6 has not seen either side carrying any arms and though he had seen the said deceased and the informant scuffling and fighting with the accused persons, he had not seen the deceased being hit; however, PW 6 saw the deceased falling and becoming unconscious.
52. So far as PW 8 is concerned, he has deposed that deceased was having a lathi in his hand and he had given a blow with his lathi on Manoj Bharti and, thereafter, Manohar Bharti and Manoj Bharti hit the deceased with garasa and tengari respectively. Though this witness has not been declared hostile, his evidence does not explain as to how Pankaj Kumar Singh sustained injuries, on his head, a lacerated wound and, therefore, his evidence, too, cannot be believed in or relied Patna High Court CR. APP (DB) No.465 of 1993 dt.16-02-2015 upon.
53. Coupled with the above, it is also noteworthy that the witnesses, who were not the members of the family, have not supported the description of the occurrence given by the members of the family. This is also one of the weaknesses with which suffers the case of the prosecution.
54. No wonder, therefore, that PW 16, who gave opinion on the basis of the X-ray report, has deposed that the injury, found on the scalp of the deceased, causing depressed fracture on the left parieto occipital bone, can possibly be caused by the exercise of hard and blunt substance.
55. In the circumstances as indicated above, the medical evidence on record cannot be said to be wholly incorrect or devoid of any merit.
56. Placed in the situation, as we are, we are constrained to hold that the evidence on record was grossly inadequate to hold, confidently and boldly, the accused- appellant guilty of the offence of murder or having given the blow by means of garasa on the head of the said deceased, which the said deceased was found to have borne on the left parieto occipital region of his scalp.
57. What logically follows from the above discussion is that in the light of the evidence on record, the accused- appellant ought to have been accorded, at least, benefit of Patna High Court CR. APP (DB) No.465 of 1993 dt.16-02-2015 doubt.
58. In the result and for the foregoing reasons, we allow this appeal. The impugned conviction of the accused- appellant and the sentence passed against him by the judgment and order, under appeal, are hereby set aside. The accused-appellant is held not guilty of the offences, which he stand convicted of, and he is hereby acquitted of the same under benefit of doubt.
59. Since the accused-appellant is on bail, his bail bonds are hereby cancelled and his sureties shall stand discharged.
60. Let the Amicus Curiae be paid a fee of Rs.5,000/-.
61. Registry shall, forthwith, send a copy of this judgment and order to the learned trial Court along with the Lower Court Records.
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