Saturday 29 December 2012

Evidence of eye witness can not rejected on the ground of medical Evidence


The High  Court has  thus knocked  out an eye-witness on the
strength of  an uncanny  opinion  expressed  by  a  medical
witness over  dependence on  such opinion  evidence, even if
the witness  is an  expert in  the field,  to checkmated the
direct testimony given by an eye-witness is not a safe modus
adoptable in  criminal cases.  It has  now become  axiomatic
that medical  evidence can be used to repel the testimony of
eye-witnesses only  if it  is so  conclusive as to rule out
even the  possibility of  the eye  witness's version  to  be
true. A doctor who  conducted post-mortem  examination  or
examined an  injured person  is usually confronted with such
questions regarding different possibilities or probabilities
of causing  those injuries  or post-mortem features which he
noticed in  the medical report. But the answers given by the
witness to  such questions  need not become the last word on
such possibilities.  After all he gives  only his  opinion
regarding such questions. But to discard the testimony of an
eye-witness simply on the strength of such opinion expressed
by  the  medical  witness   is  not conducive   to the
administration of  criminal justice  ( Vide  Piara Singh and
others vs.  State of  Punjab [ AIR 1977 SC 2274 ], Manga vs.
State of Haryana [Air 1979 SC 1194 ], Ramdev and another vs.
State of Uttar Pradesh [ 1995  Suppl (1) SCC 547].


STATE OF U.P.

Vs.


HARBAN SAHAL & OTHERS

DATE OF JUDGMENT: 20/04/1998

BENCH:
M.M. PUNCHHHI, K.T. THOMAS, S. RAJENDRA BABU










Thomas, J.
     This appeal  by special  leave is by the State of Uttar
Pradesh Challenging the Acquittal order passed by a Division
Bench of  the Allahabad High Court  in a  murder case. The
Sessions Court had convicted four accused under Section 302
read with  Section 34 of Indian penal Code and sentenced all
of them to imprisonment for life and it was on their appeal
that the  conviction was  reversed. The four  accused were
arrayed in  this appeal as respondents, but first respondent
Harban Sahai passed away during the pendency of this appeal.
So the case was  considered only  as against  the remaining
three respondents. They are: 2nd accused - Sarwan Sahai, 3rd
accused- Virendra and 4th accused - Vimlesh.
     The genesis  of the  events which led to the occurrence
in this case was  the murder  of Virendra's  father  (Shyam
Manohar) in  1976. In  that murder case PWI (Shashi Bhushan)
and his uncle (Jagdish Prasad- the  deceased in this case)
were challaned by the police as accused which ended in their
conviction by  the trial  court. They filed an appeal before
the Allahabad  High Court.  They filed an appeal before the
Allahabad High Court. During  the pendency  of that  appeal
their sentence was suspended and they were releases on bell
just a couple of  days prior  to the incident in this case.
First accused  (Harban Sahai)  and  second  accused  (Sarvan
Sahai) are  the nephews of Shyam manohar. The fourth accused
(Vimlesh )  is his  grandson. As  pointed out  above,  third
accused (Virendra) is the son of Shyam Manohar.
     The  incident   in this  case  happened  on  16.1.1978
prosecution version  is thus:  Shyam Manohar (deceased ) and
his nephew  Shashi Bhushan  (PW1) were walking through the
sugarcane field belonging to  one Maiku.  The time was then
around 4.30  p.m. They saw the fourth accused emerging from
the north  of the  field. First accused (Harban  Sahai) and
forth accused  (Vimlesh) had  guns with them and others had
lathis. Seeing the deceased  and shashi  Bhushan the  third
accused (Virendra)  yelled out that they  would average for
the murder  of their  father. Sensing  the on-rushing danger
PW1 and deceased scampered away, but they were chased by the
assailants, A1(Harban  Sahai) and  A4(Vimlesh) fired  their
guns and  shyam Manohar  fell on  the ground,  while PW1
succeeded  in escaping  by  running  towards a  different
direction. Second  accused (Sarwan  Sahai) and third accused
(Virendra) went near the  fallen victim  and lambasted him
with sticks.  When some local people rushed to the scene the
assailants made their escape  good. Shyam Manohar was taken
in a bullock-cart to the hospital but on the way he breathed
his last.
     The First Information Report was lodged by PW1 (Shashi
Bhushan) at   the local police station in which he mentioned
all the details of the occurrence including the names of the
accused as  well as the names of those who reached the place
on hearing the commotion.
     PW 7   (Dr.R.S.  Pandey) of  the  District  Hospital
Moradabad, conducted  post-mortem examination  on  the dead
body of Shyam Manohar. He noted ten anti-mortem injuries on
the body  including five  lacerated wounds  and one  incised
would on the right chest which did not gape into the cavity.
Among the  lacerated wounds  one was  ostensibly a  gun-shut
wound  on   the left  temporal region associated  with  a
fracture. One  pellet was  found embedded in the brain. That
wound is  described as injury No.  7 in  the post-mortem
certificates issued by the doctor.
     Sessions  Judge   found  that  evidence  of  PW1(Shashi
Bhushan) and  PW 2  ( Shiv  Sagar Lal) are  quite  reliable
basing on their testimony. The trial court convicted all the
accused.
     But the  High Court  found the evidence of the tow eye-
witnesses not  worthy of  credence. One of the reasons high-
lighted by the High Court is that both eye-witnesses said in
Court that  one of  the lathis was a  Kanta (a stick with a
knife like  portion on one end)  whereas in  the  FIR, the
informant had  said that  only lathis and guns were employed
by the assailants. According to the High Court the witnesses
purposely made the said improvement upon the FIR in order to
give an explanation of the incised  injury  noted  by the
doctor during autopsy.
     The aforesaid  criterion is  the result of the strained
reasoning. It  is  understood  that  "Kanta"  without  sharp
projection at the end would be a mere stick or lathi. If the
nephew of  the deceased mentioned in the FIR that assailants
were armed  with lathis and guns  there  is  no  reason  to
concludes  that  the  information   when  he gave   first
information had ruled out  the possibility  of Kanta  being
used by the assailants.  FIR is  not  a  chronicle  of the
exhaustive details  of the occurrence, not is it a catalogue
of everything  including minor particulars  of the  events
which took  place. Picking  out an insignificant discrepancy
regarding description  of one of the weapons for jettisoning
an otherwise  sturdy account  of the  eye-witness  is  to  a
commendable approach in evaluation of evidence .
     The second reason put-forth  by  the  High  Court for
disbelieving the  version of  the eye-witnesses is this: PW1
(Shashi Bhushan)  and PW2  (Shiv Sagar Lal) said  that two
accused head  fired the fun simultaneously, but the deceased
sustained only one gun-shut injury which is described in the
post-mortem  certificate   as  injury No.  2. The  public
Prosacutor in  the trial  court endeavoured  to  show that
injury No.  7 would  possibly have  been the result of a gun
shot. Dr.  R.S. Pandey (PW7) answered to  the said  query
saying that  there is  a possibility  of that  injury  being
caused in  a gun-shot  if pellets  have touched that part of
the fact  and deflected therefrom. Injury No. 7 is described
as "multiple abrasions in an area of 7 cms/6cms on the right
side of the face 2.5 cm below right eye." But the High Court
ruled out  the possibility  of the  said injury having been
caused in gun-shot on the following reasoning.
     " But  in the cross-examination the
     doctor has denied the  possibility
     of such  Injury being  caused while
     the deceased  was being chased from
     behind and that is  exactly  wheat
     and prosecution case is, that while
     the deceased  was running away the
     appellants armed  with guns,  fired
     from  behind.  consequently  injury
     No. 7,  even if  it is said to be a
     gun-shot injury,  would not  go  to
     corroborate the prosecution case in
     any manner."
The High  Court has  thus knocked  out an eye-witness on the
strength of  an uncanny  opinion  expressed  by  a  medical
witness over  dependence on  such opinion  evidence, even if
the witness  is an  expert in  the field,  to checkmated the
direct testimony given by an eye-witness is not a safe modus
adoptable in  criminal cases.  It has  now become  axiomatic
that medical  evidence can be used to repel the testimony of
eye-witnesses only  if it  is so  conclusive as to rule out
even the  possibility of  the eye  witness's version  to  be
true. A doctor who  conducted post-mortem  examination  or
examined an  injured person  is usually confronted with such
questions regarding different possibilities or probabilities
of causing  those injuries  or post-mortem features which he
noticed in  the medical report. But the answers given by the
witness to  such questions  need not become the last word on
such possibilities.  After all he gives  only his  opinion
regarding such questions. But to discard the testimony of an
eye-witness simply on the strength of such opinion expressed
by  the  medical  witness   is  not conducive   to the
administration of  criminal justice  ( Vide  Piara Singh and
others vs.  State of  Punjab [ AIR 1977 SC 2274 ], Manga vs.
State of Haryana [Air 1979 SC 1194 ], Ramdev and another vs.
State of Uttar Pradesh [ 1995  Suppl (1) SCC 547].
     In this  case, High Court has over-looked the fact that
even the  admitted gun-shot injury was "on the left temporal
region". If  such an  injury could be caused while both were
running then  it is  equally possible that a gun-shot injury
can as well be caused on  the "right side of the face." It
would be  waird to  assume that the running man's head would
not have  swivelled to either side.  That apart  it is not
necessary that the bullet emanated from the gun should have
hit the target, as it might have just by passed him. At any
rate, the  said reasoning  of the  High Court is too fragile
for throwing the evidence of an eye-witness over-board.
     The third reasoning of the High Court the blood-stained
earth collected by the Investing officer from the place of
occurrence war not forwarded  to the  Chemical Examiner  to
test the  origin of  blood such reasoning is too tenuous and
even if such contention was advanced by the defence the High
court need  not have  taken any serious head to it. Omission
to send the collected from the  place of  occurrence for
chemical examination  has not  vitiated the investigation to
any extent.  We disapprove  the aforesaid  reasoning of the
High Court.
     When the  reasons put-forth  by the  High Court against
the evidence  of the  two principal  witnesses PW1  ( Shashi
Bhushan)  and PW  2 (Shiv  Sagar   Lal)  are  found too
insufficient to discard their testimony we have to look at
the evidence  from  other  angles  to  see  how far  it  is
acceptable.
     PW1'S version  regarding the  occurrence  gets  a very
stable corroboration  from the FIR which  was lodged by him
within two  hours of  the occurrence. The High Court did not
entertain any  doubt that  FIR was  anti-dated or that there
was any delay in  its lodgement.  Even the  defence did not
contend like  that. in such a situation the prompt and early
reporting of  the occurrence  by PW1  to the police with all
its vivid  details gives  us an assurance regarding truth of
his version.
     Evidence of  PW2 can be viewed from broad angles. he is
the owner  of a field situated adjacent to the place where
the occurrence happened. So  there is a fair probability of
his being  present at  his field. Second is, when PW1 stated
in the FIR that  a number  of persons had reached the place
during the occurrence, the name of PW2 was also mentioned in
that list.  The Investigating  Officer questioned him at the
earliest point of time and cited him in an eye-witness. The
trial court  found his evidence quite reliable.  There  is
nothing to  doubt that he was speaking falsehood. for these
reasons we find no scope to reject his testimony.
     The motive  alleged  for the murder  is apparently a
very strong  one. The  assailants are the close kith and kin
of Shyam  Manohar who  was murdered.  There was every ground
for  the  assailants  to  believe  that Shyam Manohar was
murdered by  the deceased  Jagdish  Prasad  and his  nephew
shashi Bhushan (PW1). This  is clear from the fact that one
court found them quilty of that murder . But when assailants
knew that  despite the conviction and sentence passed by the
trial court  they were are large  as  the  high  Court had
suspended  their   sentence  and   released  them  on  Bail,
naturally the instinct of revenge would have been galvanised
and they  would have  been groping  for an opportune time to
avenge for  the murder of their father Shayam Manohar. Thus
the motive  put forward by the prosecution stands proved and
it is a very strong circumstance to buttress the prosecution
version.
     In our  view, the High Court has benefited the accused
with an unjust and  unmerited acquittal  based on  certain
reasons which are wholly insupportable.
     We, therefore,  reverse  the  order  of  acquittal and
restore the  conviction and  sentence passed  by the session
Court. We  direct the Sessions Court to take necessary steps
to put respondent No. 2 Sarwan Sahal, No.3, Virendra and No.
4, Vimlesh  back in  jail for  undergoing the  sentence. The
appeal is thus allowed.


Print Page

No comments:

Post a Comment