Kanta Bhatnagar, J.
1. This appeal is directed against the judgment dated November 5, 1985 passed by the Additional Sessions Judge, No. 2, Hanumangarh by which appellant Gurdeo Singh was convicted Under Section 302 IPC and sentenced to imprisonment for life and a fine of Rs. 500/-, in default of payment of fine to undergo six months R.I.
2. Succinctly narrated the prosecution case disclosed in the FIR lodged by Mohd. Sadeek (PW 1), brother of deceased Sharif Khan, at Police Station, Peelibanga at 1.00 P.M. is that his brother Sharif Khan was visiting the house of Gurdeo Singh. Gurdeo Singh suspected Sharif Khan of having illicit relations with his wife. That day i.e. on August 5, 1984 at about 10.00 A.M. he and his brother Sharif Khan were going to their field. Gurdeo Singh followed them and along with his brother proceeded ahead while talking with him. Mohd. Sadeek remained a little behind. Gurdeo Singh inflicted 'kassi' blow on the back side of the neck of Sharif Khan. He fell down. Gurdeo Singh then inflicted another blow on his neck. On the informant raising cry, Gurdeo Singh ran away. He went near his brother who was breathing slowly and after sometime died. He went to Usman Khan (PW 2) and told him the fact and along with him had come to the Police Station to lodge the report. The oral report was reduced into writing as Ex. P/1 by A.S.I. Jasbir Singh (PW 4) of Police Station Peelibanga. Dy. S.P. Mohan Singh (PW 7) who had gone for inspection of the Police Station Peelibanga on that day took the investigation in his charge and went to the site. He inspected the site and prepared the site plan Ex. P/2 and site inspection memo Ex. P/8. At the instance of Mohd. Sadeek the panchayatnama of the dead body Ex. P/3 was prepared. The blood stained cloths were taken in possession. The postmortem examination of the dead body was conducted by Dr. Vijay Kumar (PW 6), Medical Officer, Peelibanga on the same day at 4.00 P.M. at the site itself. The Doctor prepared the postmortem examination report Ex. P/7. He noted following injuries on the dead body:
1. Incised wound 2.5' x 0.5' x 0.2' on middle of occipital region of scalp horizontally directed.
2. Incised wound 5' x 1' x 2' just below angle of left law extending on neck over trachea and thyroid cartilage to right side of neck. Horizontally directed. Sterno mastoid. Muscles, canal artery, jugular vein cut, thyroid cartilage cut.
3. According to the Doctor the duration of death was within 24 hours of the postmortem examination. 30th the injuries were antemortem in nature and injury No. 2 was sufficient to cause death in the ordinary course of nature. In the opinion of the Doctor, the cause of death was due to injuries on vital organs (cartid artery, trachea) leading to haemorrhage and shock. Appellant Gurdeo Singh was arrested on August 8, 1984 by the Dy. S.P. Mohan Singh (PW 7) vide memo Ex. P 9. On august 9, 1984, appellant furnished information Ex. P 10 for getting recovered one 'kassi' from the 'chhapra' Vide Ex. P 11 on August 9, 1984, the Dy. S.P. recovered one 'kassi' from the western corner of the 'chhapra', in pursuance of the information furnished by the appellant. 'Kassi' and the clothes of the deceased were sent for the Chemical Examination Ex. P. 14 is the report received from the Serologist, Forensic Science Laboratory, Rajasthan, Jaipur. All the articles were found to be stated with 'B' group blood.
4. Upon completion of necessary investingation chargesheet against the appellant was filed in the Court of Munsif and Judicial Magistrate, Sri Ganganagar. The case on committal reached the Court of Additional Sessions Judge, No. 2, Hanumangarh. The learned Judge chargesheeted the appellant Under Section 302, IPC and recorded his plea. On his denial of the indictment trial proceeded. In order to substantiate its case prosecution examined eight witnesses in all. In his statement Under Section 313 of the Code of Criminal Procedure, the appellant denied the allegation levelled against him. One defence witness Mahavir Prasad was examined to slate that in the year 1984 Janu Khan (PW 8) has cultivated the field of Fazal Deen, the grand father of the deceased. The learned Judge place reliance on the evidence of Mohd. Sadeek (PW 1) and Janu Khan (PW 8) and the recovery of 'kassi' and convicted and sentenced the appellant as stated above.
5. We heard Mr. Doongar Singh, learned Counsel for the appellant and N.S. Acharya, learned Public Prosecutor for the State.
6. The learned Counsel for the appellant has assailed the finding of the learned trial Judge on the ground that the two alleged eye witnesses viz. Mohd. Sadeek (PW 1) and Janu Khan (PW 8) are interested in the deceased and despite their inconsistent, unrelibale and unbelievable testimony the learned Judge has made their statement basis for conviction without there being any evidence of motive for the crime. The learned Counsel for the appellant vehemently argued that the medical evidence does not support the statement of the eye witnesses regarding the time of occurrence and as such the two witnesses could not be present at the site of occurrence and Mohd. Sadeek having seen the dead body of his brother lying on the way has falsely implicated the appellant. The recovery of the 'kassi', the alleged weapon of crime, according to the learned Counsel, should not have been taken help of by the learned trial Judge in holding the appellant guilty because the information was much after the date of the occurrence and the recovery was from a place accessible to any body.
7. The learned Public Prosecutor justifying the findings of the learned trial Judge and controverting the arguements of the learned Counsel for the appellant submitted when the case is duly established by the two eye witnesses, the medical evidence has rightly not been attached importance by the learned trial Judge because the medical evidence is based on the opinion of the Doctor which cannot always be said to be exact. The learned Public Prosecutor submitted that that the 'kassi' was recovered at the instance of the appellant and having the same group of blood as that on the clothes of the deceased has rightly been considered to be a strong circumstance against the appellant.
8. The prosecution had led direct as well as circumstantial evidence. The direct evidence is of Mohd. Sadeek (PW 1) and Janu Khan (PW 8). The circumstantial evidence is recovery of 'kassi' in pursuance of the alleged information furnished by the appellant.
9. Modh. Sadeek (PW 1) happens to the brother of the deceased and has claimed to have accompanied him to the field that day. Janu Khan was claimed to have seen the occurrence from a distance. Mohd. Sadeek and Janu Khan both have denied the fact of the latter having ever cultivated the field of Fazal Deen, maternal grand father of Mohd. Sadeek and deceased Sharif Khan. Janu Khan has while denying such a suggestion, stated that he was cultivating his own field though he did not know the number of the field. In his statement Under Section 313 of the Code of Criminal Procedure, the appellant as stated earlier, has slated that Janu Khan was cultivating the field of Fazal Deen & was therfore, interested in his grand son the deceased. To substantiate this contention Mahaveer Prased patwari has been examined as DW 1. He, on the basis of the record, has staled thai at Village Hansliya there is Murba No. 20/283 admeasuring 19 1/2 Bighas of land belonging to Fazal Deen which in the year 1984 was cultivated by Jaan Mohd. son of Maru Khan. Janu Khan (PW 1) happens to be the son of Maru Khan. This shows that in order to show Janu Khan an independent witness, he as well as Mohd. Sadeek have falsely slated about his having never cultivated the field and Fazal Deen, grand-father of the deceased and Mohd. Sadeek. Before appreciating the statement of Mohd. Sadeek (PW 1). the main witness in the case, was consider it proper the discuss to evidence of Janu Khan (PW 8).
10. According to the learned Counsel for the appellant, Janu Khan was not an eye witness to the occurrence as his conduct and the testimony shows and had been examined by the prosecution on the application of the Public Prosecutor after the arguments were heard by the learned trial Judge. Janu Khan has stated that at about 10.00 a.m. on the day of occurrence he was going from his 'dhani' at his field to the village and on reaching near the field of Chuna Ram, he saw Gurdeo Singh and Sharif Khan coming from the other direction. Gurdeo Singh was having a'kassi'and Mohd. Sadeek was coming behind them. Gurdeo Singh inflicted 'kassi' blow, Gurdeo Singh inflicted second blow. Sharif Khan fell down and raised a cry. Gurdeo Singh ran away. The witness stated that being afraid, he also ran away towards his 'dhani' and did not go to Sharif Khan. Thai, he went there when the villagers had reached the site and he saw injuries on the neck of Sharif Khan who had since died. In cross-examination, the witness stated that his house was at a distance of Five 'killa' from the place of occurrence and the place where from he saw the incident was 1 1/2-2 'Killas' from the place of occurrence. The witness slated that he had seen the occurrence standing in the field of Chuna Ram. He could not tell the Murraba Number of his field. The testimony of the witness has been assailed by the learned Counsel for the appellant on the ground of his unnatural conduct of not going near the injured at Sharif Khan's raising cry even after Gurdeo Singh having run away, from there. The witness staled that he being frightened went to his 'dhani' and did not go near Sharif Khan. That, he had gone there only when the villagers had come there. According lo him 10-12 persons of the village had assembled there had come there and Teja Singh Member was amongst them, It is important to note that neither Teja Singh nor any other villager except Usman Khan has been examined by the prosecution. The neighbourers of the field Dharam Singh, Karam Singh and Nanuram etc. have also not been examined to substantiate the version of Janu Khan that he was at field or 'dhani' nearby or on that day was present at the time of the occurrence and to states to what had happened on the way near their field that day. Janu Khan's statement is to be carefully examined because as his version goes he has not pointed out the place where from he had seen the occurrence. Sadeek, at whose instance the site plan Ex. P 2 and site inspection memo Ex. P 8 were prepared has also not pointed the Police the place were Janu Khan was standing at the time of occurrence. The SHO has admitted that he had not shown in the map the place were the witnesses have claimed to be at the time to the occurrence. The explanation by him is that it was not necessary. Janu Khan has staled that wnen he reached he did not tell any body that he had seen the occurrence. According to him Mohd. Sadeek had told those person that Janu Khan had seen this occurrence. It is important to note that in the FIR Janu Khan has not been shown as an eye witness nor has Mohd. Sadeek in his deposition in the Court stated about Janu Khan being an eye witness to the occurrence which in the natural course of events he should have stated because according to Janu Khan Mohd. Sadeek had told the persons assembled there that i.e. Janu Khan was there. The witness has slated that after staying about 10-15 minutes at the site he went to his village and when returned, Police had reached the site. Thai the Police had reached the site same day in the evening and had gone to him at his 'dhani'. He stated that his statement was not recorded by the Police. Then in the next breath he stated that his statement was recorded and he told Police that Mohd. Sadeek had told the persons that he i.e. Janu Khan had seen the occurrence. He stated that Police had taken his thumb impression on his statement. On the statement recorded under section 161 of the Code of Criminal Procedure, the signature and thumb-impressions are not taken and the witness cannot be believed when he says that his thumb impression was taken on his statement. The witness has initially stated that his statement was not recorded by the Ploice. Investigating Officer Mohan Singh was examined as PW 7 on July 23, 1985 whereas Janu Khan was examined as PW 8 on Oct, 1985 and as such the defence counsel could not ask him whether any statement of the witness was recorded or not. The learned Public Prosecutor submitted that if Janu Khan was examined in the last and the defence counsel wanted to ask anything to the Investigating Officer regarding him, the request should have been made to the Court for recalling the Investigating Officer. The argument would have been good if the various ordersheet would not have shown as to under which circumstance and at what stage the statement of Janu Khan was recorded. Upon perusal of the various ordersheets of the trial Court, it is evident that on July 1, 1985, as mentioned in the ordersheet, only one witness Mohan Singh, Dy. S.P. remained to the examined and was summoned. He was examined on July 23, 1985. On July 31, 1985 statement of the accused Under Section 313 of the Code of Criminal Procedure was recorded. On August 6, 1985 the arguments were heard and judgment was reserved. On August 12, 1985 an application was moved by the Public Prosecutor for permission to examine Janu Khan. The application was allowed and Janu Khan was examined on October 5, 1985 as PW 8. This has given rise to the argument by the learned Counsel for the appellant that because of the testimony of Mohd. Sadeek not being sufficient to substantiate the prosecution case, Janu Khan has been implanted as an eye witness. The argument is not devoid of force because prior to the statement of this witness it has no where come on record i.e. neither in the FIR nor in the statement of Mohd. Sadeek or the Investigating Officer that Janu Khan was an eye witness to the occurrence or he was examined by the Police. Janu Khan has stated that Mohd. Sadeek has told the people assembled there that Janu Khan had seen the occurrence. If it was so then it cannot be said that Mohd. Sadeek might not be aware of the presence of Janu Khan,at the time of the occurrence in the field near by and might not have brought it to the notice of the Police that Janu Khan was an important eye witness, and should be examined. In this view of the matter, Janu Khan's name for the first time being disclosed as eye witness on August 12, 1985 in the application filed for getting him examined as a witness raises serious doubt about his really being an eye witness of the occurrence. On August 16, 1985 application was moved that Janu Khan was ill and could not be examined. On September 4, 1985 request was made by the counsel for the accused at the trial that this delayed examination of Janu Khan would prejudice the case of the accused and may not be examined at that late stage. The learned Judge did not allow the prayer on the ground that it was after hearing both the parties the application dated August 12, 1985, Janu Khan was allowed to be examined and it was ordered the defence will have the right to cross-examine the witness. The learned Public Prosecutor submitted that this prayer has been rightly rejectied becuase it was in the presence of the counsel for the parties that the application dated August 12, 1985 was allowed. The larned Counsel for the appellant submitted that as various ordersheets show, when that application was decied, the local Counsel Madan Chand only was present and the Counsel who really conducted the case was not present and naturally so, because on August 6, 1985 arguments were heard and the case was reserved for judgment and, judgment could be heard by the local Counsel.
11. From the above discussion of the evidence of Janu Khan coupled with the facts that no witness has spoken about his presence being closed and two months after the final arguments being heard and place of his presence at the time of occurrence having not been shown in the site plan, we do not consider his presence at the time of occurrence established and as such, his evidence cannot be taken to be reliable.
12. We are now left with the evidence of Mohd. Sadeek (PW 1) and Usman Khan (PW 2). Usman Khan is not an eye witness and has deposed what he had heard from Mohd. Sadeek has stated about his accompany his brother at 10.00 A.M. on August 5, 1984. He has stated about Gurdeo Singh's corning there and proceeding ahead while talking with his brother Mohd. Sharif and inflicting two 'kassi' blows on his neck. That, he had remained a little behind. He has stated about his raising the cry and Gurdeo Singh running away from there. That, he went near his brother who was breathing slowly and then died. He then went to Usman Khan and along with him went in a Tractor to Police Station, Peelibanga and lodged the oral report to A.S.I. Jasbir Singh.
13. The learned Counsel for the appellant has stressed that the FIR was not recorded at the Police Station but was rather recorded at the site as admitted by Mohd. Sadeek himself. The learned Counsel based this argument on the statement of the witness to the effect that he narrated the facts before the Sub- Inspector and then he stated that he would call the Dy. S.P. That, after 1/2 or 3/4 hour, the Dy. S.P. came. That, the Police might have written the report but he does not know because he was weeping. That, he then came to the site with the Police in the jeep. That, his thumb impression was perhaps taken at the Police Station. That, the Police had reduced into writing the facts. He further stated that as his brother was lying dead he did not properly recollect that the Sub-Inspector was simultaneously writing as well as trying to call the Dy. S.P. It is important to note that Dy. S.P. Mohan Singh had gone that day to the Police Station, Peelibanga for inspection and was not called from outside. Mohd. Sadeek (PW 1) has categorically stated in the later part of his cross-examination that whatever information he has given at the Police Station was reduced into writing near the dead body. Then he stated that before that something was written at the Police Station. The occurrence is said to have taken place at about 10.00 a.m. Mohd. Sadeek and Usman Khan had reached the Police Station at about 1.00 P.M. The Police Station is at distance of 15 Kilo Metre only. The explanation for the delay is that all that time was taken for arranging the Tractor.
14. The learned Counsel for the appellant submitted that at a distance of two or three Kilo Metre there was Police Out Post- Goluwala to which Village-Hanslia was attached but no information was lodged there. The explanation given by the witness is that it was on a 'kachha route' and even on bicycle it might have taken an hour or so. The learned Counsel for the appellant stressed that this time might have been taken to falsely implicate the accused without Mohd. Sadeek having seen the actual occurrence and the information might have been recorded at the site after concerned and for that reason, information was sent till evening to the concerned Magistrate. In case the prosecution case is otherwise established by convincing evidence that fact alone would not be sufficient to discard the prosecution evidence.
15. Before discussing the evidence of Mohd. Sadeek the argument of the learned Counsel for the appellant regarding the absence of motive for commission of crime is considered.
16. The motive according to the FIR was suspicion of Gurdeo Singh regarding the deceased having illicit relation with his wife. But this fact has been given a go back by Mohd. Sadeek in his statement at the trial. The witness has not stated anything about any enmity or ill between the accused and the deceased.
17. The presence of motive may strenghthen the prosecution case but absence of motive may not in all cases weaken the prosecution case because if it is established that particular person is the perpetrator of the crime, absence of proof of motive may not help him much because motive to commit the crime is a suggestive condition of the mind and only the perpetrator of the crime can know what motivated him at a particular moment to act in a particular way. As such all that can be said is that the motive to commit the crime is not known.
18. Mohd. Sadeek has stated about 'kassi' being the weapon of offence. He has stated that at the time of preparing the panchayatnama of the dead body, he had hold the Police that his brother was killed by the accused with 'kassi'. This fact is not there in the panchayatnama Ex. P./2. Usman Khan and Mohd. Sadeek have stated about 30-40 persons having gone to the site. It is notewortly that not a single persons out of them has been examined. Even the occupants of the neighbouring field have not been examined. Nor is there any explanation for the Investing Officer not doing so.
19. Leaving apart the infirmities in the statement of Modh. Sadeek, the most important factor emphasize by the learned Counsel for the appellant raising suspicion about Mohd. Sadeek accompanying his brother and the incident having taken place at the time staled by this witness is the statement of Dr. Vijay Kumar who conducted the autopsy. According to Mohd. Sadeek at about 10.00 A.M. he and his brother have left the house for going to the field and were to work there for the whole of the day. The witness stated on that day he and his brother had left the house just after taking wheat-leaves and chillies. He further staled thai his brother might have taken one or two loaves with chilly and lassi. The witness further staled that after half an hour of their taking food and leaving the house, the incident had taken palce. According to this witness his brother Sharif had died at the spot itself on sustaining the injuries. The Doctor has stated that at the time of the postmortem examination the stomach of the deceased was empty. According to him the non-vegetarian food takes more time to digest than the vegeterian food. That, both types of food pass from abdomen to the small intestine within four or five hours of taking food. On being confronted with the opinion of Modi expressed in his treatise Medical Jurisprudence the Doctor agreed that it can be stated that the vegetarian food remains in the stomach for more time the non-vegetarian food and the vegetarian food lakes at least six or on the seven hours in passing from the abdomen to the small intestine. The Doctor also found old fickle matter in the big intesinc. He however, expressed that in case the deceased would have eaten wheat leaves with chilly chatni and would have taken lassi then in every case till five hours after the death, these things would have remained in the stomach undigested.
20. The learned Counsel for the appellant emphatically argued that the fact of abodomen being empty falsifies the testimony of Mohd. Sadeek that the deceased had taken meals about half an hour before his death. According to the learned Counsel the unavoidable inference from the statement of the Doctor would be that the deceased had not left the house along with his brother at 10.00 a.m. after taking meals rather he might have been murdered much before the time slated by Mohd. Sadeek. In other words according to the learned Counsel the food taken in the night by the deceased must have been digested and he might have been murdered by someone in the early morning and later on Mohd. Sadeek might have seen the dead body and in the absence of any other eye witness on the basis of suspicion involed the appellant in the crime. The learned Counsel tried to strengthen his argument from the fact that the information of the occurrence was lodged at 1.00 p.m. at the Police Station despite the distance between Village-Hanslia and Police Station, Peclibanga being only 15 miles. The learned Counsel in this connection also referred to the admission of Mohd Sadeek that the information furnished at the Police Station was reduced into writing near the dead body which according to the learned Counsel might have been done after thinking over the matter as to whom and in what way to implicate in absence of witness to the occurrence.
21. The learned Public Prosecutor agreed that the statement of the Doctor does not support Mohd. Sadeek regarding the time of death of the deceased taking food about half an hour prior to his death. His contention however is that undue importance should not be attached to the medical opinion because there may be difference of an hour this way or that way in a particular fact taking place from the time stated by medical expert. It has also been contended by the learned Public Prosecutor that the occurrence had taken place in rural area and the rustics ordinarily do not have sense of exactitude of time and when they stale about the time, it is their estimate only.
22. Certain authorities have been cited from both the sides to substantiate the rival contentions.
23. In the case of Shivaji Sahabrao Bodade and Ors. v. State of Maharasthra 1973 Cr. LR (SC) 602 the question about the time of death in view of the medical evidence came for consideration before the Court. There was evidence of undigested food in the stomach. The 'semi-digested' solid food particles were observed in the stomach of the deceased by the Medical Officer and the inference sought to be drawn was that man must have come by his end 2 to 3 hours after his last lunch which according to one prosecution witness was 10.00 a.m. If that was to be taken true then the death must have taken place at 2.00 a.m. and not at 5.30 p.m. as the prosecution case was. If the death was at 2.00 p.m. everything else in the prosecution evidence became suspicious. Their Lordships observed that the sluggish chronometric sense of the countryside community in India is not orious since time is hardly of the essence of their slow life, and even urban folk make mistakes about time when no particular reason to observe and remember the hour of minor event like taking a morning meal. According their Lordships 10.30 a.m. could well have been an hour or more one way or the other and too much play on such slippery facts goes against realism so essential in a testimonial approval. Their Lordships quoted Modi's Medical Jurisprudence that food would be completely digested in four to five hours. Reference was also made to the extract from the Medical Jurisprudence that the mixed diet of animal and vegetable foods, normally taken by Europeans, takes 4 to 5 hours for complete digestion while a vegetable diet containing mostly farinaceous food usually consumed by Indians, does not leave the stomach completely within 6 to 7 hours after its intention. Their lordships observed that the learned author cautiously adds that the stomachic contents cannot determine with precision the time of death in as much as the power of digestibility may remain in abeyance for a long time in stales of profound shock and comma and that it must also be remembered that the process of digestion in normal healthy persons may continue for a time after death. In view of the imponderable pointed out by the author, the learned Judges took the digestive testimony inconclusive and therefore, insufficient to contract positive evidence, if any, about the time of death. According to their Lordships to impute exactitude to a medical statement oblivious to the variables notices by experts and changes in dietary habits is to be unfair to the science. Their Lordships with these observations proceeded to ascertain whether reasonable doubts about the prosecution case are available on the record, and whether there credible eye witness evidence or corroborating circumstance. Their Lordships after discussing the evidence of the eye witness observed that had the whole case rested on the sole testimony of the witness their minds would have wavered, but the prosecution by way of corroboration had placed on record the dying declaration of the deceased and the discovery of in criminative material to the confession made by the accused and their Lordships felt convinced that the accused were reasonably proved to have committed the crime of murder.
24. In the case of State of U.P. v. Ashok Kumar and Anr. 1979 SCC (Cr.) 606 the important circumstance taken to quinch the issue was the medical evidence. The Doctor who performed the postmortem examination found the small intestines distended with gas and in the end of the small intestines liquid faccus was present and the large intestines were empty. The Doctor was of the opinion that the deceased must have been shot at a time when he had either not taken any food at all or the entire food if taken was fully digested and left the stomach. The prosecution case was that the deceased had taken food at about 12.00 in the night after the Natak which started at 9.00 p.m. and continued for three hours. The story of the daceased taking smosa was given a complete go back by the other witness. Their Lordships observed that either the deceased took food or he did not take any food is known to his son and the other witness who is said to be present at the time. There was no explanation for the two different versions given by the two witnesses unless the idea was to bring the evidence, at least of the witness, in tune with the medical evidence. In this view of the matter, their Lordships confirmed the Order of the acquittal passed by the High Court in an appeal against the conviction.
25. In the case of State of U. P. v. Krishna Gopal : 1989CriLJ288 the conviction and sentence Under Section 302 read with section 34, IPC passed against the respondent-accused in the Sessions trial was set aside by the High Court of Judicature at Allahabad and the matter in appeal by Special Leave reached before Hon'ble the Supreme Court. The High Court in an appeal on reassessment of the entire evidence persuaded itself to view that having regard to the nature and severity of the injuries, the injured could not reasonably be expected to have been in a position to make the dying declarations attributed to him and that the discrepancies in the evidence of the eye witnesses rendred them unsafe to be relied upon and that with the rejection of the dying declarations and the eye witness account, nothing remained which would connect the accused persons with the crime. The judgment of conviction as such was set aside. Their Lordships discussing the medical evidence and the rival contention, observed as under:
There might also be some justification for the grievance of the appellant that the High Court had prepferred some observations in the medical evidence which Sri Prithviraj characterised as merely conjectural answers--to the other categoric answers by the very medical witnesses themselves. Learned Counsel also submitted that it would be erroneous to accord undue primacy to the hypothetical answers of medical witness to exclude the eye witnesses account which had to be tested independently and not treated as the 'variable' keeping the medical evidence as the 'constant.
26. Their Lordships were impressed by the submission of the learned Counsel for the appellant regarding certain points which rendered the judgment of the High Court infirm. As such, the appeal was partly allowed and the judgment of the High Court was set aside and the appeal was remitted to the High Court with the direction to re-admit it, and hear and dispose of the same on the merits afresh. Regarding the medical evidence their Lordships observed as unden:
The High Court, should it consider it necessary or appropriate, might consider calling for expert medical evidence--of course with appropriate opportunity to the defence on the point of the effect of the injuries on the speech and consciousness of the witness.
27. The calling of the expert medical evidence was of course entirely left to the High Court.
28. In the case of Surinder Singh v. State of Punjab 1989 SCC (Cr.) 649 the medical opinion regarding the presence of semi- digested food in stomach of the deceased was taken to be important to connect the probable time of death. The Doctor had given the time of death as 11.00 p.m. i.e. 16 hours before the autopsy was conducted. On the basis of presence of semidigested food in the stomach of deceased Manjeet Singh at the time of autopsy the Doctor opined that Manjeet Singh should have taken his last meal 2 or 3 hours before his death. According to one witness Rahul Chandra, the appellant and the deceased were taking curd at the Mohinder Pal at about 9 or 10 p.m. and it was at that time that the qurrel had taken place between them and that after qurrel was slopped by the intervention of the witness he went to the New Market and lay down on a bench. Such being the case, their Lordships considered it to be highly doubtful if Manjit Singh would have thereafter got up and gone somewhere and taken his food. Their Lordships observed that the High Court has failed to consider this relevant factor indicating probable time of death and that shows considerable doubt abount the prosecution case that Manjit Singh had been attacked about 3 or 4 p.m.
29. In the case of Lala Ram v. Slate of U.P. 1990 SCC (Cr.) 276, the Doctor who conducted the postmortem examination, having regard to undigested food in the stomach of the deceased, opined that the death might have occurred at 8 or 9 p.m. half an hour to one hour after taking food. Their Lordships were of the opinion that normally deceased would have taken food after 7 or 8 p.m. In those circumstances, the prosecution theory introduced that the two deceased persons took food at 3.00 p.m. was considered to be highly artificial.
30. In the case of Shambhoo Missir and Anr. v. State of Bihar 1990 SCC (Cr.) 518, also the question of time of death came for consideration in view of the inconsistency between the prosecution case and the medical evidence. The prosecution case was that the deceased had taken food before 8.00 a.m. and death took place at 3.00 p.m. The Doctor performing the autopsy found 8 ounce of undigested food in the stomach of the deceased. There was no explanation from the prosecution side for the undigested food. In those circumstances their Lordships held that the medical evidence falsified the prosecution case that the deceased had died soon after 8.00 a.m.
31. The consensus in almost all the judicial pronouncements on the point is that whenever there is discrepancy between the medical evidence and the prosecution case, the Court should not lightly brush aside the opinion of the Doctor on the gound that it is only an expert opinion and has not the worth of exactitude.
32. We agree with the learned Public Prosecutor that the rustics do not have much sense of time and by estimate state the time, being an hour or so this way or that way. We also agree that the medical evidence should not be taken as giving the accurate time of death and there may be difference of an hour or so in the probable time of death expressed by the Doctor. However, in the circumstances of the case on hand, there is definite evidence of Mohd. Sadeek that he and Sharif had taken food about half an hour before the occurrence i.e. just after taking food they left the house and about half an hour thereafter at about 10.00 the incident had taken place. Even if margin of an hour is given to the time, it will not fit in with the medical opinion because the stomach of the deceased was found empty that the vegetarin food takes 5 to 7 hours for digestion. Had the deceased taken bread and chilly and lassi half an hour before his death, there must have been undigested or semi-digested food in the stomach and there was no possibility of the stomach being found empty. This significant discrepancy in the statement of Mohd. Sadeek and the medical opinion raises grave suspicion on the veracity of his testimony that he had accompanied his brother after taking food with him and was an eye witness to the occurrence.
33. While discussing the evidence of Janu Khan (PW 8), we have expressed that he was not a witness to the occurrence. In the light of the various order sheets of the trial Court and the fact that his name had not occurred any where during the trial or in the F.I.R. prior to the prosecution filing the application and that too after the arguments being heard and the judgment being reserved that he should be permitted to be examined as a prosecution witness, we found substance in the contention of the learned Counsel for the appellant that he has been introduced as witness to lend support to the infirm testimony of the solitary witness Mohd. Sadeek, real brother of the deceased whose deposition was falsified by the medical evidence.
34. In order to make out as to whether conviction can be based on the solitary testimony of Mohd. Sadeek in the circumstances referred to above, it would be necessary to discuss the circumstance of recovery of 'kassi' at the instance of the accused-appellant and to see whether it provides a corroborative piece of evidence so as to lend support to the version of Mohd. Sadeek.
35. The accused was arrested on August 8, 1984 vide memo Ex. P 9. The information Ex. P 10 for getting a 'kassi' recovered is said to have been furnished on August 9, 1984 and on that very day vide memo Ex. P 11 'kassi' was recovered from the 'chapper' of the 'Jumpa' of the appellant. The date of occurrence is August 5, 1984. Mohd. Sadeek (PW 1) has deposed that Police had apprehended Gurdeo Singh on the day of occurrence it self. If it was so then the accused must have been kept under Police custody for three days without arrest memo being prepared or remand after 24 hours being taken. The learned Counsel for the appellant in the view of the matter argued that accused must have been harassed for disclosing something and the Investigating Officer allowed three days to pass before preparing the arrest memo, showing the arrest of the accused on August 8, 1984 simply to eliminate the circumstance that from August 5, 1984 till August 9, 1984, the accused had not disclosed anything. Shah Rasool (PW 3) is the motbir to the recovery memo Ex. P 9. According to him 5 or 7 months prior his statement in the Court Police had brought Gurdeo Singh handcuffed to his village and he was called by the Police. That, Gurdeo Singh took the Police to his house and took-out 'kassi' from the northern corner of the grass. 'Kassi' had blood on it. The Police sealed the 'kassi' and took his impression on the memo. The house of the witness at a distance of one Murraba from the house of Gurdeo Singh. The witness admitted that near the house of Gurdeosingh there is the house of Kashi Ram and the Maulvi of the mosque was also residing nearby. Kashi Ram and the Maulvi had come on seeing the Police and were present there at the time. According to the witness when he had gone there, Gurdeo Singh and the Police persons were already present near the house of Gurdeo Singh. He has admitted that in the 'Jumpa' from whose 'chhapper' the 'kassi' was recovered was open and there were no shutters.
36. Learned Counsel for the appellant argued that the nearest neighbourcrs i.e. Kashi Ram and the Maulvi of the mosque being the responsible persons and their having come on the site seeing the Police should have been taken as motbirs of the recovery memo, instead of the Police sending for Shah Rasool from a distance.
37. The laarned Public Prosecutor emphasized that the recovery of 'kassi' is a very strong circumstance against the appellant because the serologist has noted 'B' Group of Blood on the 'kassi' as well as on the clothes of the deceased. On the face of it the argument may be attractive but from a further probe into the matter, this circumstantial evidence does not remain significant, firstly, because there is no evidence that the 'kassi' from the time of its recovery till the time of its reaching the Forensic Science Laboratery remained in intact sealed condition. The submission is not without substance. Dy. S.P. Mohan Singh (PW 7), the Investigating Officer has stated that the weapon of offence remained in proper sealed condition so long as it remained in his possession and then at the Police Station under his supervision. The Incharge of the Malkhana has not been examined. Dy. S.P. Mohan Singh, the Investigating Officer was not regularly going to the Police Station. As stated by him on August 5, 1984, he had gone to Police Station Peelibanga for inspection and the Police Station on the day was A.S.I. Jasbir Singh. Jasbir Singh had not gone to the site nor has he stated anything about the 'kassi'. Om Prakash Constable (PW 5) has slated that on September 2, 1984 i.e. about 28 days after the alleged recovery Head Constable Om Prakash gave him four sealed packets to the taken to Jaipur which he took and deposited on September 3, 1984 and the receipt is Ex. P 6. Head Constable Omprakash had not been examined to state as to where, in whose custody and in what condition the articles remained.
38. The learned Counsel for the appellant emphatically argued that in the absence regarding the articles remaining in intact sealed condition from the date of alleged recovery till the date of its reaching the Chemical Examiner is a serious infirmity in the proseuction case and this fact coupled with the fact of recovery being from the chhapper of the 'Jumpa' having no shutters and accessible to all cannot be pressed into service to connect the appellant with the commission of the crime. The learned Counsel for the appellant forcefully argued that the very fact of the accused being kept in custody for four days without arrest, as is evident from the statement of Mohd. Sadeek that he was apprehended on the date of the occurrence itself, shows that the 'kassi' was implanted in the 'chhapper' and the recovery was shown at the instance of the appellant in pursuance of the alleged information furnished by him.
39. The circumstantial evidence in order to be pressed into service should be such which excludes all other hypothesis than the guilt of the accused. In the present case the circumstance of recovery for the reasons discussed above, is such that it would not be safe to take it as lending support to the testimony of Mohd. Sadeek whose testimony in itself is infirm and incredible. The Infirmities in his uncorroborated version and the discrepancies in his version and the medical opinion cannot be lightly obliterated. While expressing this opinion we are alive of the guidelines laid down by the Apex Court of the country that as to whether a person accused of the crime deserves benefit of doubt, the doubt should be so reasonable tilting towards the innosence. In other words there must be substantial factors raising doubt and the Court should not be swayed by emotions. However, the cardinal principle of Criminal Law that prosecution must establish the case beyond all reasonable doubt from cogent, convincing and credible evidnece cannot be ignored while evaluating and material brought on record against the accused. On considering the evidence on record, in the present case, with these principle in mind, we are of the opinion that prosecution has not succeeded in bringing home the guilt against the accused-appellant by reliable direct or circumstantial evidence. It would not be safe to base conviction on the solitary testimony of Mohd. Sadeek, the real brother of the deceased, whose evidence we have already discussed and felt inclined to discard.
40. Consequently, the appeal of Gurdeo Singh is allowed. His conviction and sentence are set aside and he is acquitted of the charge levelled against him. He is in Jail. He shall be set at liberty forthwith, if not required in any other case.