S.L. Kochar, J.
1. Being dissatisfied with the judgment dated 2-8-1999 passed by the learned Addl. Sessions Judge, Rajgarh (Biaora) in S. T. No. 29/91, thereby finding the appellant Dhanna guilty of the offence punishable under Section 302, IPC and appellants Amra and Gokul under Section 302/34, IPC, convicted them accordingly and sentenced appellant Dhannalal to suffer imprisonment, for life and to pay a fine of Rs. 10,000/- and in default of payment of fine to suffer additional, R.I. for one year Under Section 302, IPC and appellants Amra and Gokul to suffer imprisonment for life under Section 302/34, IPC. Out of the amount of fine, Rs. 10,000/- has been directed to be paid as compensation to the dependents of deceased Harisingh. the appellants have come up in appeal before this Court.
2. Briefly stated, the facts of the case as unfolded before the trial Court were that on 16-11-1990 about 1.00 p.m. in the way from village Sadla to Sedora, appellants Amra, Gokul and Dhanna and co-accused Biram assaulted Harisingh thereby causing grievous injuries to him. The incident was witnessed by Bhimsingh, Prabhu, Shivlal Singh and Seema. The matter was reported by P.W. 5 Bheemsingh at Police Station Bhojpur vide Ex. P/2. The injured Harisingh was sent to the Hospital at Khilchipur and from there he was referred to District Hospital, Rajgarh, for examination and treatment, Dr. J. C. Gupta (P.W. 10) examined Harisingh on 17-11-1990 and issued injury report Ex. P/17. In the hospital at Rajgarh, Harisingh died on 18-11-1990. This doctor also performed autopsy on the dead body of deceased Harisingh and gave post-mortem report Ex. P/18. In the opinion of the medical expert, Harisingh died because of head injury resulting into intra-cranial haemorrhage leading to coma. The appellants were arrested and at their instance weapon of offence were seized, Police prepared the spot-map Ex. P/19, Control and blood stained earth was seized from the place of incident. Articles were sent for Chemical Examination to the Forensic Science Laboratory, report whereof is Ex. P/22. After due investigation, the appellants were charge-sheeted. They denied their guilt and therefore, they were put to trial.
To establish its case, prosecution examined as many as 13 witnesses while the defence did not examine any witness. The learned trial Court, after hearing both the parties, found the appellants guilty and sentenced them as indicated hereinabove.
3. Against co-accused Biram, proceedings under Section 299 of the Cr. P.C. were initiated and he was declared absconding.
4. Learned counsel for the appellants Shri Viveksingh has submitted that the trial Court has erred in placing reliance on the testimony of eye-witness P.W. 5 Bheemsingh and other eye-witnesses, Kheema, Prabhu and Shivpal Singh. Though the statement of Bheema (P.W. 5) and other witnesses are at variance with the First Information Report (Ex. P/2) and medical evidence of Dr. J.C. Gupta (P.W. 10). To strengthen his submission, learned counsel for the appellants has placed reliance on the Supreme Court judgments passed in Ahmed Bin Salam v. State of A. P., : 1999CriLJ2281 and Ramesh Maruti v. State of Maharashtra, : 1994CriLJ8 .
5. Per contra, learned Public Prosecutor Shri Manoj Dwivedi, has submitted that there is no material discrepancy in the statements of eye-witnesses Bheemsingh (P.W. 5), Kheema (P.W. 7), Prabhu (P.W. 8) and Shivpal Singh (P.W. 6). According to him, the statement of Bheemsingh (P.W. 5) is duly corroborated by his First Information Report (Ex. P/2) and the statements of eyewitnesses mentioned hereinabove, are fully corroborated by the medical evidence of Dr. J. C. Gupta (P.W. 10).
6. Having perused the entire record and legal position applicable in the facts and circumstances of the present case, we are of the opinion that the learned trial Court has given contrary finding in para 16 of its judgment regarding corroboration to the testimony of P.W. 5 Bheemsingh on material particulars by his First Information Report (Ex. P/2) and medical evidence of Dr. J. C. Gupta (P.W. 10), as well as regarding witnessing of the incident by the witnesses Kheema, Prabhu and Shivpal Singh. For placing reliance on the testimony of these witnesses, learned trial Court has also assigned reason that all the four witnesses were not having any ill-will or animosity with the appellants for implicating them falsely. Therefore, their statements are true and reliable.
7. Now we consider the star witness P.W. 5 Bheemsingh. The say of this witness in his examination-in-chief is that in the noon between 10 and 11 O'clock, his sister Vishnubai (not examined by the Prosecution) came to his house and asked him to follow deceased Harisingh because the appellant may quarrel with him. At her request this witness rushed towards the road approaching to village Sarda and saw that the appellant Dhanna dealt an axe blow on the head, appellant Gokul dealt a lathi-blow, absconded co-accused Biram and appellant No. 3 Amra assaulted by stones. He has also stated that all the three were having lathis with them. At the time of incident. Prabhu (P.W. 8) one Vikram (not examined), Shivpalsingh (P.W, 6) and other persons also reached at the scene of occurrence. After assault, all the appellants fled away, Deceased Harisingh fell down on the ground. He was bleeding because of axe-injury on the head of the deceased. They lifted Harisingh from the spot and brought him to his house. Thereafter, they took him to Bhojpur where he lodged the First, Information Report (Ex. P/2). The FIR was read over to him in the Court and he admitted it along with his signature at portion marked A to A.
8. In cross-examination para 5, this witness has admitted that deceased Harisingh was his real brother-in-law (sister's husband). Initially of cross-examination para 3 he deposed that except lodging of report, which was recorded by Station House Officer, he did not give (sic) about incident to the police. Again, he clarified that after lodging of the report, he was not interrogated by the police. He was confronted with the FIR about the fact of information or request of his sister Vishnubai in regard to apprehension of quarrel between the deceased and appellants, but, he could not assign any reason for omission of this fact. We are of the opinion that this omission is not of any significance. In cross-examination he stated that prior to the incident, the deceased Harisingh after consuming liquor had set fire to the bundle of reaped crop (PINDOLE) of accused persons. The deceased and appellants were having enmity because the appellants had put the bundle of reaped crop on his land. He was confronted with his report about this reason for enmity, but he failed to account for this omission. We are also not taking into consideration this omission in the First Information Report which may affect the truthfulness and veracity of this witness. In the same paragraph, he admitted regarding his statement apart from the First Information Report (Ex. P/2) recorded by the Police (Head Sahib) in the Rajgarh Hospital vide Ex. D/1. He was confronted with the statement portion marked A to A in Ex. D/l 'Mai Daudkar....Kuchh Nahi Bataya'. This witness denied this portion of his statement.
9. According to this witness, when he reached running at the scene of occurrence, the appellants were assaulting the deceased. It appears that this contradiction put. to the witness is showing that the incident of Maarpeet was already going on when he reached on the spot. In our view, this contradiction also will not corrode the ocular testimony of this witness.
10. In para 4, the witness P.W. 5 Bheema testified that he was the first person to reach on the spot first in point of time. Thereafter, other witnesses including Kheema reached over there. The appellants assaulted before him and thereafter, they ran-away, before two to 5 minutes of reaching of P.W. 7 Kheema and P.W. 6 Shivpalsingh. According to this witness, the deceased fell down on the ground after sustaining axe blow. Thereafter, all the appellants dealt two to four blows each and ran-away. He was confronted with his First Information Report (Ex. P/2) about non-mention of the fact that the appellant Dhaniya was possessing an axe and absconded co-accused Biram and appellant No. 2 Amra had assaulted the deceased by stones. According to him, he had very well mentioned this fact in the First Information Report (Ex. P/2) and the statement recorded by the police (Ex. D/l). But, he could not assign any reason as to why these facts are not mentioned in the FIR, as well as in the Police-Statement.
11. The omission in the FIR about use of axe by appellant Dhaniya is a material omission which amounts to contradiction. In the FIR, he mentioned about possession and use of axe by absconded co-accused- Biram and against appellant No. 1 Dhaniya use of lathi. Against absconded co-accused Biram and appellant No. 2 Amra in the First Information Report and case diary statement (Ex. D/l) use of lathi by both the accused is mentioned. These contradictions about use of weapon and especially axe is very important and material. This witness is the brother-in-law of deceased and if he was present and had witnessed the incident which had occurred in broad-day-light, he could not have committed mistake about possession of weapon and use of the same by the appellants by mentioning in the FIR as well as in the Court. In the Court, his statement was recorded after about nine months of the incident. Therefore, much time had not elapsed to consider fading of his memory, on a vital issue of possession and use of weapon by the respective accused persons.
12. Another severe jolt is given to the prosecution case by the medical evidence of Dr. J. C. Gupta (P.W. 10) who did not find any injury caused by any hard sharp object. In the first examination he noted presence of one lacerated wound on the middle of head of deceased admeasuring 3 1/2 cm x 5 cm. He advised X-ray for this injury. Injury No. 2 was an abrasion on left side of neck, the third injury was a contusion with swelling on left knee and the fourth injury was an abrasion on right foot. The medical Expert opined that injury No. 1 was caused by hard and blunt object. No. 2 by rough object simple in nature, injury No. 3 by weapon like lathi and the fourth by rough object, simple in nature. The deceased was admitted in the hospital. He was unconscious. On 18-11-1990 in the morning at 8.00 a.m. Harisingh died and was taken to P.W. 10 Dr. J. C. Gupta (P.W. 10) for postmortem examination, who on external examination found four injuries as mentioned hereinabove coupled with fracture of left patella bone.
13. On internal examination Dr. Gupta found fracture of occipital parietal bone, conjestion in brain membrane and presence of clotted blood in left temporal and occipital area. In his opinion, the deceased died because of head injury and injuries were sufficient in the ordinary course of nature to cause death.
14. Prosecution has not taken trouble to put specific question to this witness whether the injury No. 1 on head could be caused by sharp side of the axe and according to this witness, injury No. 1 was caused by hard and blunt object. Therefore, there is no reason for this Court to consider that blunt side of the axe might have been used which is not the prosecution case and in view of the Supreme Court judgment in the case of Hallu v. State of M. P., : 1974CriLJ1385 , we cannot hold that the axe was used otherwise than its common and prevalent use i.e. sharp side. Injury No. 4 fracture of patella bone could be caused by hard and blunt object like lathi or even stone.
15. The Supreme Court in the case of Devatha Venkataswamy alias Rangaiah v. Public Prosecutor : 2003CriLJ4332 held that 'when there is direct conflict between the medical evidence and oral evidence, oral evidence cannot be preferred'. In this very case (Ibid) the appellant is stated to have pierced the forehead of the deceased with a spear (sharp edged weapon) once, whereas the medical evidence was that the said injury was caused by use of a blunt weapon and that too by repeated blows, because of direct conflict between medical evidence and oral evidence. It is said by their Lordships that the High Court erred in concluding that the medical evidence supported the oral evidence.
16. In the case in hand, as discussed hereinabove, there is not only direct conflict between the eye-witnesses' account and medical evidence regarding use of weapon, but there is shifting of use of sharp edged weapon i.e. axe by absconded co-accused Biram to the appellant No. 1 Dhanniya and their overt act. There is also material contradiction about use of lathi and stone by the appellants.
17. In the case of Thaman Kumar v. State of Union Territory Chandigarh : 2003CriLJ3070 , the Apex Court in detail has highlighted about reliability of ocular testimony in different situation having conflict with medical evidence in para 16 as under :-
'The conflict between oral testimony and medical evidence can be of varied dimensions and shapes. There may be a case where there is total absence of injuries which are normally caused by a particular weapon. There is another category where though the injuries found on the victim are of the type which are possible by the weapon of assault, but the size and dimension of the injuries do not exactly tally with the size and dimension of the weapon. The third category can be where the injuries found on the victim are such which are normally caused by the weapon of assault but they are not found on that portion of the body where they are deposed to have been caused by the eyewitnesses. The same kind of inference cannot be drawn in the three categories of apparent conflict in oral and medical evidence enumerated above. In the first category it may legitimately be inferred that the oral evidence regarding assault having been made from a particular weapon is not truthful. However, in the second and third categories no such inference can straight away be drawn. The manner and method of assault, the position of the victim, the resistance offered by him, the opportunity available to the witnesses to see the occurrence like their distance, presence of light and many other similar factors will have to be taken into consideration in judging the reliability of ocular testimony.'
18. The learned trial Court, in para 18 has considered some passage of Medical Jurisprudence and Toxicology page 289 by H.W.P. Cox and held that sometimes injury caused on the head by sharp and heavy object appears like lacerated wound because of less thickness of skin of the skull. This passage of Text Book was not shown to the Autopsy Surgeon P.W. 10 Dr. J. C. Gupta who had also attended the deceased first in point of time and gave MLC Report Ex. P/17. The Supreme Court in the case of State M. P. v. Sanjay Rai 2005 (1) Jab LJ 411,: (2004 Cri LJ 2006) para 18 has held that 'opinion of doctor cannot be discarded on the basis of Text Book when the passages of books were not put to the doctor. In view of this finding of the learned trial Court in para 18 in this regard is not sustainable.
19. Considering the situation as pointed out by the Supreme Court in the case of Thamman (2003 Cri LJ 3070) (supra) the present case falls within the category No. 1 i.e. there is total absence of injury which is normally caused by heavy and sharp weapon 'axe'. Therefore, we have no hesitation to hold that direct conflict in the statement of eye-witness P.W. 5 Bheema and medical evidence vis-a-vis his contradictory statement in the Court about use of axe by appellant with the First Information Report.
20. The learned trial Court has incorrectly mentioned in para 16 that P.W. 7 Kheema was also the eye-witness of the incident who was present at the time of incident, whereas P.W. 7 Kheema has been declared hostile, by the prosecution. According to him, he only saw the appellants running away from the scene of occurrence. According to the statement of star witness P.W. 5 Bheemsingh, Kheema, Prabhu and Shivpal Singh reached at the scene of occurrence after running away of the accused persons from the spot. Therefore, it would be incorrect to say that these three persons were present on the spot and witnessed the incident.
21. On independent visualisation of the statement of P.W. 8 Prabhulal though according to him, he witnessed the incident, but again his version is not corroborated by medical evidence regarding causing of axe injury on head and neck of the deceased. This witness has stated in para 4 that his statement was recorded by the police after 7/8 days. The next eye-witness is Shivpal Singh (P.W. 6). This witness has also deposed that appellant, Dhanniya caused injury by axe on the head of deceased Harisingh and this fact is not mentioned by him in his case diary statement Ex. D/2. This witness has admitted in para 5 that he and 14 persons were prosecuted on the report lodged by the accused persons. In this view of the matter, he could not be considered as an independent witness and he is also contradicted by the star witness P.W. 5 Bheemsingh about time of his presence on the scene of occurrence. According to this witness he was already present on his well and was irrigating his field. At that juncture, deceased Harisingh and witness Prabhu were going towards Shivpura and at that time all the appellants with co-accused Biram reached over there and assaulted him. Accused Dhanniya was assaulted by axe and rest of the appellants used lathi.
22. One more circumstance, of this case which is very alarming, is that according to eye-witnesses, the incident occurred on 16-11-90 between 10 and 11.00 a.m. on main road going from Sadla to Sedra and according to prosecution, 4 to 5 persons immediately reached on the spot. Out of them, P.W. 5 Bheemsingh is the brother-in-law of deceased. Even then, neither they had taken the deceased to any nearby hospital nor did they immediately rushed to the Police Station for lodging the report. The report was lodged on the next day i.e. 17-11-1990 at 1.00 a.m. i.e. almost after 14 hours. If these witnesses were in fact present on the scene of occurrence and had witnessed the incident, they would have not taken such a long time to lodge the report and at least they would have not failed to provide immediate medical aid to the deceased. The totality of circumstances is indicating towards the fact that none had witnessed the incident and when P.W. 5 Bheemsingh and his sister Vishnubai (not. examined) came to know about presence of deceased on the road in injured condition, Thereafter, they have gone to the spot and took the deceased to the Police Station and on suspicion, concocted a case against the appellants.
23. In view of the foregoing discussion of factual and legal aspect of the matter, we are of the opinion that the prosecution has miserably failed to prove its case beyond all reasonable doubt. Therefore, the appellants are entitled to get benefit of doubt.
24. Thus, this appeal is allowed. The conviction and sentences of the appellants are set aside. The appellants No. 2 and 3 are on bail. Their bail bonds shall stand discharged and appellant No. 1 Dhanna alias Dhanniya is in jail. Learned trial Court is directed to release him forthwith if not required in any other criminal case. The amount of fine if realised, shall be refunded to appellant Dhanna alias Dhanniya. A copy of this judgment along with the record of the trial Court shall be remitted to that Court immediately for compliance.