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PETITIONER: STATE OF U.P.

       Vs.

RESPONDENT: HARBAN SAHAL & OTHERS

DATE OF JUDGMENT:       20/04/1998

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

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T 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

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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

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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.

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    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.