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PETITIONER: STATE OF HARYANA

       Vs.

RESPONDENT: BHAGIRATH AND OTHERS

DATE OF JUDGMENT:       12/05/1999

BENCH: K.T.Thomas, D.P.Mohapatra

JUDGMENT:

Thomas J.

       Every father is the best protector of his own children that is  the order of human nature.  But there had been freaks in the history of mankind when  father  became  killer  of  his  own child.   This case tells the story of such a freak when Subhram - the 33 year old son of Bhagirath was  butchered  by  cutting  the throat.   As  Subhram  was  congenitally  blind  perhaps the only solace in the eerie episode seems to be that the victim would not have had any idea of the physiognomy of his murderers.  Bhagirath and his two nephews (Hanuman and Kheta)  were  convicted  by  the sessions  court  under  Section  302  read with Section 34 of the Indian Penal Code and the three were  sentenced  to  imprisonment for life.    But  the High Court, on appeal by the three accused, acquitted Bhagirath and confirmed the conviction and sentence  of his two  nephews.    State  of  Haryana  has filed this appeal by special leave against the acquittal of Bhagirath.

       Backdrop of the prosecution story is the following:

       Bhagirath and his wife Jamna have a  son  Subhram  and  a daughter (Naraini).    Subhram though was born blind, was healthy and active and  remained  a  bachelor.    Naraini  was  given  in marriage  to  a pedagogue in Rajasthan (PW8  Ram Sarup) and they were living separately at village  Rawana.    Bhagirath  and  his brother  Kanharam  together  had  32 acres of ancestral property. The other two  accused  (Hanuman  and  Kheta)  are  the  sons  of Kanharam.   In  a  family arrangement the share of Subhram in the aforesaid 32 acres had been settled as 1/6th.  Bhagirath and  his wife  Jamna  became estranged with each other long back, and they were living separately.  Subhram was  residing  with  his  mother Jamna ever-since the separation and Bhagirath was residing in the house along with his nephews Hanuman and Kheta.

       Disputes  arose  between  Subhram  on  the  one  side and Bhagirath and  his  two  nephews  on  the  other  side  regarding enjoyment  of  the  land,  perhaps the accused would have thought that Subhram, being blind, might not get married and  so  on  his death the properties would revert back to the family.  But at the age  of  thirty three Subhram became desirous of married life and negotiations were on the move for finding out  a  suitable  match for him.  A couple of months prior to his murder Subhram executed a  mortgage of his share of the properties to PW10 Prabhati for a sum of Rupees twenty  two  thousand.    When  Prabhati  tried  to

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cultivate  the  mortgaged  land  it  was resisted and that led to initiation of proceedings  under  Section  107  of  the  Code  of Criminal  Procedure  against the three accused as well as against Subhram and Prabhati.  In the meanwhile, Subhram  filed  a  Civil Suit  for  partition  of his share in the properties by metes and bounds.  Thus,  the  situation  became  tense  and  the  acrimony reached its zenith.

       The  murder  took place, according to the prosecution, at about 12.30 noon on 8th August, 1987.    Prosecution  version  is thus:

       Deceased Subhram  set  out  to  his  sisters  house.  He proceeded to the bus stop but he missed  the  bus  as  the  stage carriage  had  already  moved  off by the time he reached the bus stop.  He was told that the next bus would be at 2.30 pm.  So  he went to a nearby house for whiling away the time in between.  The lady of the house (Harbai-PW4) was an old woman.  She and Subhram had  a  chat  together for some time and then she withdrew to the kitchen and thereafter Subhram slumped on a cot on  the  verandah of that house.  He might or might not have gone to siesta.

       At  about  12.30  noon  his  father  Bhagirath along with Hanuman and Kheta reached there.  Bhagirath held a  grip  on  the legs  of his son while Hanuman and Kheta whacked on his neck with Kulhari (heavy sharp weapon for cutting purposes).   Hearing  the sounds  of death pangs of the victim, the two lady inmates of the house (PW4 Harbai and her daughter-in-law PW6 Hirli)  rushed  out of the  culinary section.  They were shellshocked by the sight of the blind young man being slaughtered by the three assailants who took to their heels after accomplishing the object.  The hue  and cry  made by the ladies brought attention of the men and women of the  entire  neighbour-hood,  and  all  rushed  to   the   scene. Deceaseds  mother  Jamna on hearing the saddest news in her life dashed to the scene, but  the  sight  of  her  blind  sons  head remaining  practically  severed  from  the trunk had affected her mental equilibrium and she suddenly swooned.

       Sessions Court placed complete reliance on  the  evidence of  PW4  Harbai  and  her  daughter-in-law PW5 Hirli and held the three accused guilty under Section 302 read with  Section  34  of the IPC and convicted them and sentenced them as aforesaid.

       A Division Bench of the High Court of Punjab and  Haryana concurred  with  the  sessions court regarding the reliability of evidence of the two eye witnesses and  confirmed  the  conviction and sentence   passed  on  Hanuman  and  Kheta.    But  regarding Bhagirath the Division Bench said like this:

"Although  we  find  the testimony of Harbai and Hirli realiable and trustworthy but as Bhagirath has not caused any injury we, as a matter of abundant caution,  give  him  benefit  of  doubt  and acquit him  of  the charge.  The conviction and sentence of other two are maintained."

       The High Court has failed to consider the implication  of the  evidence  of  the  two  eye  witnesses  on the complicity of Bhagirath particularly when the High Court found  their  evidence reliable.   Benefit  of doubt was given to Bhagirath as a matter of abundant caution. Unfortunately, the High Court did not point out the area where there is such a doubt.  Any restraint  by  way of  abundant  caution  need  not be entangled with the concept of benefit of doubt.  Abundant caution is always  desirable  in  all

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spheres of  human  activities.    But the principle of benefit of doubt belongs  exclusively  to  criminal  jurisprudence.      The pristine  doctrine  of benefit of doubt can be invoked when there is reasonable doubt regarding the guilt of the accused.    It  is the   reasonable   doubt  which  a  conscientious  judicial  mind entertains on a  conspectus  of  the  entire  evidence  that  the accused  might  not  have  committed  the  offence, which affords benefit to the accused at the end of the criminal trial.  Benefit of doubt is not a  legal  dosage  to  be  administered  at  every segment  of  the evidence, but an advantage to be afforded to the accused at the  final  end  after  consideration  of  the  entire evidence,  if the judge conscientiously and reasonably entertains doubt regarding the guilt of the accused.

       It is nearly impossible in any criminal  trial  to  prove all elements  with  scientific precision.  A criminal court could be convinced of the guilt only beyond the range of  a  reasonable doubt.  Of course, the expression reasonable doubt is incapable of definition.    Modern  thinking  is in favour of the view that proof beyond a reasonable  doubt  is  the  same  as  proof  which affords moral certainty to the judge.

       Francis  Wharton,  a celebrated writer on Criminal Law in United States has quoted from judicial pronouncements in his book on Whartons Criminal Evidence as follows (at page 31, volume 1 of the 12th Edition):

"It is  difficult  to  define  the  phrase  reasonable  doubt. However,  in all criminal cases a careful explanation of the term ought to be given.  A definition often quoted or followed is that given by Chief Justice Shaw in the Webster Case.  He says:    It is  not mere possible doubt, because everything relating to human affairs and  depending  upon  moral  evidence  is  open  to  some possible or imaginary doubt.  It is that state of the case which, after   the  entire  comparison  and  consideration  of  all  the evidence, leaves the minds of the jurors  in  that  consideration that  they  cannot say they feel an abiding conviction to a moral certainty of the truth of the charge."

       In  the  treatise  on  The  Law  of  Criminal  Evidence authored  by  HC Underhill it is stated ( at page 34, Volume 1 of the Fifth Edition )thus:

"The  doubt  to  be  reasonable must be such a one as an honest, sensible  and  fair-minded  man  might,  with  reason,  entertain consistent  with  a  conscientious desire to ascertain the truth. An honestly entertained doubt of guilt is a reasonable doubt.   A vague  conjecture  or  an  inference  of  the  possibility of the innocence of the accused is not a reasonable doubt.  A reasonable doubt is one  which  arises  from  a  consideration  of  all  the evidence in  a  fair  and reasonable way.  There must be a candid consideration of all the  evidence  and  if,  after  this  candid consideration  is had by the jurors, there remains in the minds a conviction of the guilt of the accused, then there is no room for a reasonable doubt."

       In Shivaji  Saheb  Rao  Bobade  vs.  State of Maharashtra [1974 (1) SCR 489] this Court adopted the same  approach  to  the principle  of  benefit of doubt and struck a note of caution that the dangers of exaggerated devotion to rule of benefit  of  doubt at  the  expense of social defence demand special emphasis in the contemporary context of escalating crime and escape.  This  Court

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further said:

"The judicial  instrument  has  a  public  accountability.   The cherished principles or golden thread of proof beyond  reasonable doubt  which  runs  through  the  web  of  our  law should not be stretched morbidly to embrace every hunch, hesitancy  and  degree of doubt."

       These   are   reiterated   by  this  Court  in  Municipal Corporation of Delhi vs.  Ram Kishan Rohatgi [AIR 1983 SC 67].

       Learned counsel for the respondent Bhagirath argued  that the  injuries  found  in  the  post-mortem  examination  are  not consistent  with  the  testimony  of   the   eye-witnesses   and, therefore, a  reasonable  doubt  would arise in that region.  The anti-mortem injuries found on the neck of the dead  body  of  the deceased, as described by Dr.  Vijay Singh Yadav (PW7) is this:

"One  incised  wound  on  the  right side of neck 4 cms from the manubrium sterni.  The wound started from the left  side  of  the neck,  one  cm from the midline and it was 14 cms long and 4½ cms wide.  There was transaction of all the viscera and bone  at  the level of   cervical   vertebrae   No.5.     Only  the  skin  left downwards."

PW7 said in cross-examination that the said injury  "is  possibly by  a single blow by one weapon with some backward support and it is  not  the  result  of  two  blows  with   two   weapons.   In re-examination  the doctor did not agree to the suggestion of the Public Prosecutor that  after  one  blow  was  inflicted  with  a kulhari  it is possible to cause the said injury if a second blow is also inflicted by kulhari.

The opinion given by a medical witness need not be the last  word on the subject.    Such opinion shall be tested by the court.  If the opinion is bereft of  logic  or  objectivity,  court  is  not obliged to  go  by  that  opinion.   After all opinion is what is formed in the mind of a person regarding a fact  situation.    If one doctor forms one opinion and another doctor forms a different opinion  on  the  same facts it is open to the judge to adopt the view which is more objective  or  probable.    Similarly  if  the opinion  given  by  one doctor is not consistent with probability the court has no liability to go by that opinion  merely  because it is said by the doctor.  Of course, due weight must be given to opinions  given  by  persons  who  are  experts in the particular subject.

Looking at the width of the wound on the neck (4.5  cm)  and  its length   (14  cms)  a  doctor  should  not  have  ruled  out  the possibility of two successive strikes with a sharp weapon falling at the same situs resulting in such a wide incised wound.  If the doctor does not agree to the possibility of causing such a  wound the  doctor  should  have  put-forth cogent reasons in support of such opinion.  But PW7 did not give any such reason for the  curt answer  given  by  him  that  such  an injury could not have been caused by two strikes with the  same  weapon  or  with  different weapons of  the  same  type.  We are, therefore, not persuaded to entertain any doubt regarding prosecution version on that score.

We have absolutely no doubt  that  prosecution  has  proved  with reasonable  certainty  that Bhagirath was holding the legs of the

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deceased when his nephews cut  his  throat  and  after  finishing their work  all  the  three  ran  away  together.    In the broad spectrum of the occurrence there is no scope to entertain even  a semblance  of  doubt  that Bhagirath would have shared the common intention with the other two assailants.  The Division  Bench  of the  High Court has grossly erred in absolving Bhagirath from the crime on a misplaced doubt which, in fact, did not arise at all.

In the result, we allow this appeal and set aside  the  acquittal of  respondent  Bhagirath and restore the conviction and sentence passed on him by the trial court.  We direct the Sessions  Judge, Narnaul(Haryana) to take prompt steps to put respondent Bhagirath back in jail to undergo the remaining portion of the sentence.