Y.P. Nargotra, J.
1. This Acquittal Appeal is directed against the judgment of 2nd Addl. Sessions Judge Jammu dated 24.2.1997 whereby the respondents-accused who were tried for commission of offences under Sections 302/307, read with Section 34 RFC and 4/27 Indian Arms Act have been acquitted of the charges.
2. The prosecution case, briefly stated, is that accused-respondents and the complainant party are residents of village Rakh Muthi, Tehsil Akhnoor and were on inimical terms with each other; they were not on talking terms for the reasons that accused-respondents held the complainant party responsible for spreading a rumor in the village that accused Rattanlal alias Papu was maintaining illicit relations with the wife of his brother accused Kaku Ram. In order to take revenge accused Rattanlal, Kaku Ram, accompanied by their father accused Sunderdas, with the common intention of committing murder, went to the house of the complainant on 9.2.1993 at 8.30 PM. While the complainant and his family were preparing for taking their dinner, accused Rattanlal went inside the house of the complainant, Pamma Ram, while other two accused waited out side in the lane. Accused Rattanlal told PW Subhash Chander, son of the deceased Santosh Kumar and grand son of the complainant, that his brother, accused Kaku is calling him in the lane, on which PW Subhash Chander came in the lane followed by the complainant Pamma Ram, deceased Santosh Kumar and PW Romesh Chander, another brother of PW Subhash Chander. The moment Subhash Chander reached in the lane accused Kaku Ram saying, because he (PW Subhash Chander) was creating problems for his family, so he is to be killed, inflicted a drat blow which he was having in his hand on the head of PW Subhash Chander. The drat blow landed on his forehead, above the left eye and after sustaining injury he fell down. The deceased Santosh Kumar, when came forward to rescue his son, accused Sunder, exhorted accused Rattanlal, to kill the deceased, whereupon accused Rattanlal, who was having a khokhri in his hand, gave a blow with it on the head of the deceased Santosh Kumar. He too fell on the ground and blood started oozing out from his head. On this PW Romesh Chander, the other son of the deceased when came to save his father, accused Sunderdas gave a lathi blow which he was having with him to PW Romesh Kumar. After hearing the hue and cry, many people of the vicinity gathered there, whereupon accused fled from the spot. The complainant, Pamma Ram on the day of occurrence itself at 9.30 PM lodged an oral report in Police Post Jurian, which was recorded as DDR No. 16, copy of which was sent to Police Station Akhnoor on the basis of which on 10.2.1993 at 8.35 FIR for commission of offences Under Section 307/34 RFC and 4/27 I.A.A. was registered. Upon lodging of the report in the Police Post, police referred the injured persons for treatment to P.H.C. Jurian. In PHC Jurian injured Santosh Kumar (deceased),PW Subhash Chander and PW Romesh Kumar were examined by Dr. R.K. Gupta PW. He referred the injured to Sub-District Hospital Akhnoor after giving them immediate required treatment, where they were examined by Dr. S.K. Gupta, who further referred the injured Santosh Kumar and PW Subhash Chander to SMGS Hospital Jammu for treatment.
After registration of FIR investigation was commenced, statements of the witnesses Under Section 161 Cr.P.C. were recorded, bloodstained and plain earth was seized and sealed. On receiving the information about the deceased succumbing to his injuries at SMGS Hospital, ASI Ranjit Singh proceeded to the hospital where deadbody was seized and postmortem was got conducted thereon. Bloodstained clothes of the deceased were also seized and sealed and dead body was handed over to his heirs for performing last rites. Accused persons namely Sunderdas and Rattanlal were arrested on 11.2.1993 but accused Kaku Ram could not be arrested as he had gone back to his unit in the army where he was employed. During custody accused Sunderdas made a disclosure statement in regard to lathi which in pursuance thereof at his instance was recovered by the I.O. Accused Rattanlal too made a disclosure statement in respect of khokhri which was also recovered at his instance. Seized articles were sent for chemical examination to F.S.L. Jammu. During investigation opinion of the medical officer regarding the seized weapons was also obtained. Investigating agency after completing the investigation filed the charge sheet against the accused in the court of learned Judicial Magistrate Akhnoor. Before the learned Magistrate the investigating agency solicited orders for obtaining custody of accused Kaku Ram from the military authorities. However, accused Kaku Ram was produced by the army authorities before the Judicial Magistrate Akhnoor on 23.6.1993, whereupon he was taken into judicial custody. Learned Judicial Magistrate Akhnoor by his order dated 6.9.1993 committed the case for trial to the court of Session Jammu.
3. The Trial Court charged accused Rattanlal Under Section 302/307 RFC read with Section 4/25 I.A.A. whereas Sunderdas and Kaku Ram accused were charged Under Section 302/307 RFC. Accused were called upon to plead on which they took plea of not guilty and claimed trial. Prosecution in order to prove the charges against the accused examined Romesh Chander, Vijay Kumar, Subhash Chander, Dhano Devi, Khairatilal, Donda Ram, Jamil Ram, Dr. R.K. Gupta, Dr. S.K. Gupta, Dr. Anayatullah, Mohanlal, Kaku Ram, Shandu Ram, Kewal Krishan Constable, Anant Ram, Harbans Lal, Mushtaq Hussain Patwari, Qadeer Ahmed, Chetan Ji Matoo and Rajinder Singh. After recording the statements of the prosecution witnesses incriminating circumstances which had appeared in the evidence were put to the accused and their statements were recorded Under Section 342 Cr.P.C. The accused persons put total denial to the occurrence and pleaded false implication. Accused did not enter defence.
4. Trial Court after appreciating the evidence came to the view that evidence of the prosecution witnesses was self-contradictory and suffered from many infirmities which rendered their version not acceptable being doubtful and held the case of the prosecution not established beyond all shadow of doubt and therefore recorded their acquittal. State is thus in appeal.
5. We have heard the Mr. Salathia, learned AAG, and Mr. Chatha learned Counsel appearing on behalf of the respondent-accused at length and have gone through the case thoroughly. Mr. Salathia learned AAG, has meticulously led us through all the prosecution evidence on record. He submits that judgment of the trial court is based upon conjectures and surmises and without appreciating the evidence of eye witnesses, including the evidence of the injured witnesses, in proper perspective the acquittal of the accused has been recorded which is not legally sustainable. On the other hand the contention of Mr. Chatha, learned Counsel for the respondents, is that the case of the prosecution has not been cogently established against the accused. The witnesses have rendered doubtful account of the occurrence, they did not deserve to be relied upon and therefore acquittal is proper, legal and justified.
6. Prosecution examined six witnesses PWs Romesh Chander, Vijay Kumar, Subhash Chander, Dhano Devi, Khairatilal and Donda Ram as eye witnesses, out of whom PWs Subhash Chander and Romesh Chander were the witnesses allegedly injured in the occurrence. They have been disbelieved by the trial court. PWs Subhash chander, Romesh Chanbder and Vijay Kumar are the sons of the deceased, whereas PW Dhano Devi is his mother. FIR about the occurrence was lodged by the complainant, the father of the deceased, but he could not be examined because of his death. FIR lodged by him has been got proved by the prosecution by tendering the evidence of the scribe who had recorded the same in Police Post Jurian. The occurrence took place at 8.30 PM.
7. PW Romesh Chander when came in the witness box has deposed that on 9.2.1993 at about 8.30 PM accused Rattanlal came to their house for calling Subhash Chander and told that accused Kaku Ram was calling him out side the house in the lane, on which accused Rattanlal and PW Subhash Chander went to the street. He also followed them. Upon reaching the lane accused Kaku Ram told Subhash that he was causing tension to his family, saying this accused Kaku inflicted an injury on the fore-head of PW Subhash Chander with a drat. Then accused Rattanlal inflicted a khokhri blow on Santosh Kumar; when he tried to rescue his father, accused Sunderdas inflicted a lathi blow on his left arm. He has further stated that his wound has now been stitched which then had bled also. Upon hearing the noise his grand-mother (PW Dhano Devi), his mother and brothers reached on spot. Thereafter neighbours also assembled on spot whereupon the accused made good their escape. According to him Khairatilal shifted them to hospital in a cart where they were given treatment. His father Santosh Kumar sue-cumbed to the injuries on the next day. That the accused persons were not on talking terms with his family members but there was no rivalry between them.
8. PW Vijay Kumar, another son of the deceased stated that they were making preparations for taking meals at 8.30 PM when accused Rattanlal came to their house and told PW Subhash chander that his elder brother accused Kaku was calling him, on which Subhash Chander accompanied by accused Rattanlal went out. Then accused Kaku inflicted a drat blow on the head of Subhash Chander. When his father tried to rescue Subhash Chander, on being asked by accused Sunderdas to kill him, accused Rattanlal inflicted a khokhri blow on his head. In the meanwhile his grand mother, mother and PW Romesh Chander had also reached the spot. Accused Sunderdas inflicted a lathi blow upon Romesh Chander which was received by him on his hand and he too fell down. The occurrence was witnessed by Khairatilal and Dhonda Ram who shifted them to Jurian hospital. On being shown the seized khokhri and lathi he identified the same.
9. PW Subhash Chander who was allegedly injured in the occurrence in the examination-in-chief has claimed that at 8.30 PM when his father was about to take meals accused Rattan came to their house and told that he is being called by his brother Kaku Foji out side in the lane. When he reached near the lane accused Kaku told him that he will liquidate his family members and inflicted a drat blow just above his eye. His father reached the spot and when he tried to save him, accused Sunderas exhorted accused Rattan to kill Santosh Kumar. Thereupon accused Rattan inflicted a dagger blow on the head of Santosh Kumar. His brother Romesh also came on spot, and upon him accused Sunderdas inflicted an injury with a lathi. Thereafter his mother and grandmother reached the spot. After them Dhonda Ram and Khairatilal came on spot, and they lifted them and took them to their house. Then he and his father were removed to hospital at Jurian, where his wounds were stitched. From Jurian they were referred to hospital at Akhnoor wherefrom they were referred to Jammu hospital. He remained there for 1-1/4 months. His father however, passed way. PW Dhano Devi wife of the complainant and mother of the deceased has deposed that at 8.30 PM the accused Rattan came to their house for calling Subhash and told that Subhash is wanted by Kaku. Subhash accompanied Rattan. She was standing in her compound at that time. Deceased Santosh also followed Subhash. When Subhash reached near the lane accused Kaku inflicted a drat blow to him and told that Subhash had been causing tension to his family members. Subhash sustained injury on his forehead and fell down. When Santosh (deceased) started lifting Subhash accused Sunder asked Rattan for killing all the members of Santosh. Thereafter accused Papu (Rattanlal) inflicted a khokhri blow upon Santosh who sustained injury upon his head. Accused Sunder beat Santosh with lathi. When Romesh went to the spot accused Sunderdas inflicted an injury on Romesh also. She has further stated that they have no enmity with accused persons, however, they were not on talking terms with them.
10. PW Khairatilal is a hostile witness. He has disowned his statement recorded Under Section 161 Cr.P.C. In the cross-examination by the prosecution he has admitted only this fact that in his cart he shifted the injured to the hospital. Though hostile, he has stated that PW Subhash and deceased Santosh Kumar had sustained injuries.
11. PW Dhonda Ram is another eye witness who was living in the same vicinity where the occurrence took place, has stated that at 8.PM he was in his house, accused Rattan had gone to the house of Subhash Chander and told him that he was being called by Kaku Foji. When Subhash reached near the gate, Sunerdas and Kaku accused were standing in front of them. When Subhash reached there accused Sunder declared as to what they were looking for, whereupon accused Kaku inflicted a drat blow on the head of Santosh and Rattan inflicted a blow with khokhri on Sub causing injury on his forehead. On being cross-examined he reiterated that the accused Kaku had inflicted the injury with a dah upon Santosh Kumar and while standing in front of Santosh Kumar he and Pamma Ram were first to reach the spot. From the evidence of PW Dhonda Ram it is thus manifest that he has given a description contrary to the case of the prosecution.
12. From the evidence of four eye witnesses namely Subhash Chander, Romesh Kumar, Vijay Kumar and Dhano Devi it is evident that they have given consistent account of the occurrence. But they have not been believed by the learned Trial Court. Undisputedly deceased Santosh Kumar and PWs Romesh Kumar, Subhash Chander, Vijay Kumar and Dhano Devi are the members of the same family and were living together in the same house. PW Subhash Chander, Romesh Kumar and Vijay Kumar are sons of the deceased and Dhano Devi his mother. They have in one voice stated that on 9.2.1993 at about 8.30 PM accused Rattanlal came to their house and told that his brother Kaku Ram was calling PW Subhash Chander in the lane out side whereupon PW Subhash Chander went out with him. All the said witnesses though were cross-examined at length by the defence but nothing has been brought out by which their credibility to that part of the story can be doubted. The defence has not put even a single suggestion to them for disputing the fact that accused Rattanlal had come inside the house for calling PW Subhash Chander. Since the presence of the aforesaid witnesses in their house during that late hour was natural and their version remains unchallenged in the cross-examination the fact that accused Rattanlal came to the house of the deceased and told PW Subhash that accused Kaku was calling him out side in the lane upon which he went out side stands established. The prosecution therefore has established that accused Rattanlal at 8.30 PM came to the house of the deceased and told PW Subhash Chander that accused Kaku was calling him in the lane, upon which PW Subhash Chander went out side the lane.
13. It has also come in the evidence of the PWs Vijay Kumar, Romesh Chander and Dhano Devi that they were not on talking terms with the accused persons and were not visiting the houses of each other. This statement of the witnesses has also not been challenged by the defence in the cross-examination. Thus it has also to be accepted that family members of the deceased and the accused were not on speaking terms and did not visit the houses of each other. It has also been claimed by these witnesses in their testimony that when PW Subhash went out side the house with accused Rattanlal they and deceased had followed him. This part of their statement has also not been challenged so it is also to be accepted. The conduct of these witnesses in following PW Subhash is natural because during night accused Rattan Lal with whom the complainant party was not on talking terms had come to their house and asked PW Subhash Chander to come out side the house and he had gone out accordingly, therefore it would have been quite natural in the ordinary course of things for other family members to follow him out of curiosity and anxiety. The presence of the deceased Santosh Kumar and PW Vijay Kumar, Romesh and Dhano Devi on spot was therefore natural and cannot be disputed.
14. Now it is the case of the prosecution that the moment PW Subhash Chander reached on the spot accused Kaku Ram inflicted a drat blow on his head saying that he was causing tension for the family. PW Subhash Chander has testified to the effect that when he reached in the lane accused Kaku declaring that he was causing tension to his family inflicted a drat blow on his head. The fact of his receiving injury with drat has been strongly corroborated by the medical evidence of PW Dr. R.K. Gupta who examined him on the day of occurrence, at 9.30 PM i.e. about an hour after the occurrence in PHC Jurian. He has deposed that on his examination he found the following injury on his person:
Incised wound on the left side of forehead including on the inner canthus of left eye 5' x 4' x 1' bleeding was present, vertically placed, oozing of blood.
He has stated that he referred the patient to Akhnoor hospital for X-ray of the skull as well as for eye check up. According to him as per Radiologist's report it was disclosed that there was no bone injury. He has opined that the injury was simple in nature which could be caused by a sharp object within 12 hours of the medical examination.
15. PW Subhash chander was also examined by Dr. S.K. Gupta on 10.2.1993 at Sub-District Hospital Akhnoor where he was provided emergency treatment and was referred to SMGS Hospital Jammu for further management. From the evidence of Dr. R.K. Gupta and Dr. S.K. Gupta it stands fully established that PW Subhash Chander had received injury on his forehead. The claim of PW Subhash Chander that he received the injury at the scene of occurrence has not been challenged by the defence in cross-examination. The medical evidence duly corroborates his version. Therefore, this fact has also to be accepted that he received the injury during occurrence. His presence on the spot cannot, therefore, be doubted. The presence of sharp edged injury on his person guarantees his presence on the scene of occurrence. He has claimed in his statement that the said injury was inflicted upon him by accused Kaku with drat blow and when his father tried to rescue him accused Rattan inflicted a khokhri blow on the head of the deceased and when PW Romesh Chander came to the rescue of his father accused Sunderdas gave him a lathi blow. Trial court has not believed him for the following counts:
A- That PW Subhash chander has given full account of the occurrence in examination-in-chief but during cross-examination has admitted that after receiving the injury on his head he became unconscious and regained consciousness after 5/8 days in SMGS Hospital Jammu, therefore, it was not possible for him to have seen the manner in which the deceased had received the fatal injury;
B- If he is believed to have seen the occurrence his version cannot be accepted because he has given altogether a different version about the arrival of other witnesses on spot than the version given by other eye witnesses;
C- There is inconsistency in the evidence of PW Subhash Chander and other witnesses on the point of availability of light on the scene of occurrence. PW Subhash Chander has stated that there was darkness on the spot while the other witnesses have claimed that there was light which was coming from the electric bulbs of the houses of the complainant and PW Khairatilal;
D- He has demolished the story of motive in his cross-examination;
E- There is a conflict in the medical evidence and the evidence of eyewitnesses including PW Subhash Chander.
F- There are material contradictions between his evidence and the evidence of other eye witnesses.
16. We have considered the reasons put forth by the trial court in this behalf very thoughtfully but could not make ourselves agree with the reasoning so advanced. In our considered opinion the approach of the learned Sessions Judge adopted for appreciation of evidence of the eyewitnesses and the medical evidence is patently illegal. He appears to have blown out of proportion minor contradictions appearing in the statements of eye witnesses. The contradictions in the deposition of witnesses made during trial are bound to occur due to the time gap between the date of occurrence and date of examination of witnesses in the court which is invariably large. A testimony of a truthful witness does not become tainted merely because minor contradictions have appeared in his evidence. Contradictions which do not go to the root of the case are not fatal to the prosecution case. Unless there is material contradiction in the evidence of a witness, his credibility cannot be doubted. The credibility of a witness can be doubted only if contradictions appearing in his evidence are such which make the version of the witness improbable. The witnesses are the eyes and ears of justice; therefore, the eye witness's account requires a careful and independent assessment and evaluation for their credibility. The evidence of each witness is required to be assessed independently and its credibility has to be tested in the light of his own cross-examination by keeping the probability factor in mind but not on the touchstone of evidence of another witness. Minor discrepancies cannot be termed as contradictions unless affect the credibility of the evidence of a witness In Shashi Dhar v. State of Karnatka : 2004CriLJ4677 it has beeb observed:
The word 'contradiction' is of a wide connotation which takes within its ambit all material omissions and under the circumstances of a case a court can decide whether there is one such omission as to amount to contradiction. (See State of Maharashtra v. Bharat Changanlal Raghani and Ors. (200) 9 SCC 1, Raj. Kishore Jha v. State of Bihar JT 2003 Supp(2) 354. The explanation to Section 162 of the Code of Criminal Procedure, 1973 (in short the Code) is relevant. 'Contradiction' means the setting of one statement against another and not the setting up of a statement against nothing at all. As noted in Tahsildar Singh v. State of UP : 1959CriLJ1231 all omissions are not contradictions. As the explanation to Section 162 of the Code shows, an omission to state fact or circumstance in the statement referred to in Sub-section (1) may amount to contradiction if the same appears to be significant for otherwise relevant having regard to the extent in which the omission occurs. The provision itself makes it clear that whether any omission amounts to contradiction in the particular context is a question of fact.
While in the case of Narayan Chetanram Chaudhary v. State of Maharashtra : 2000CriLJ4640 the Supreme court has observed:
Only such omissions which amount to contradiction in material particulars can be used to discredit the testimony of the witness. The omission in the police statement by itself would not necessarily render the testimony of witness unreliable. When the version given by the witness in the court is different in material particulars from that disclosed in his earlier statements, the case of the prosecution become doubtful and not otherwise. Minor contradictions are bound to appear in the statements of truthful witnesses as memory sometimes plays false and the sense of observation differ from person to person. The omissions in the earlier statement if found to be of trivial details, as in the present case, the same would not cause any dent in the testimony of PW2. Even if there is contradiction of statement of a witness on any material point that is no ground to reject the whole of the testimony of such witness.
17. PW Subhash Chander has testified that the moment he reached in the lane, accused Kaku Ram inflicted one blow of drat on his forehead. The fact that he received the injury on his forehead has duly been corroborated by the evidence of PW Dr. R.K. Gupta. Nothing has been brought out in his cross-examination on which it can be said that he had received the injury in any other manner than the one he has spoken about. Though it has come in his evidence that there was darkness on spot yet this fact by itself cannot lead to the inference that he had not seen his assailant. The defence nowhere has disputed the identity of the accused. Once the defence did not dispute the identity of the accused during cross-examination the statement that there was darkness on spot would be of no significance and cannot be made a ground for doubting the veracity of PW Subhash Chander. The accused being neighbours were very well known to him. PW Subhash Chander's statement that accused Kaku inflicted the injury on his forehead with a drat which apart from medical evidence has also been duly corroborated by PW Romesh Kumar, Vijay Kumar and Dhano Devi, cannot be disbelieved.
18. PW Subhash Chander has also stated that accused Rattanlal, inflicted khokhri blow on the head of the deceased, his father, when he came forward to his rescue. In the view of the learned Sessions Judge it could not have been possible for him to see accused Rattanlal inflicting khokhri blow on the head of deceased Santosh Kumar for the reason that PW Subhash Chander had received the injury before the deceased Santosh Kumar was injured, and in his cross-examination admitted that as soon as he received the injury he had fallen unconscious and had regained consciousness in SMGS Hospital after 5/8 days. Before rejecting his evidence on this count learned Sessions Judge first of all was required to have satisfied himself about the truthfulness of the fact of his becoming unconscious. It is not uncommon that villagers usually exaggerate things for making their account look weighty. This is cardinal principal of appreciation of evidence that criminal court has to separate truth from falsehood like grain is separated from chaff. From the evidence of Dr. R.K. Gupta who just within an hour from the time of occurrence examined PW Subhash Chander it is indicated that he was not unconscious at all and he had even talked to him for knowing the cause of his injury, which means that while making statement in the court he was exaggerating. As PW Subhash Chander had not become unconscious he could have very well seen and witnessed the manner in which the deceased had sustained the injury. Even otherwise the occurrence must have lasted for not more than a minute or two. PW Subhash Chander could not have missed to notice the giving of blow of khokhri upon the deceased by accused Rattanlal as the same was being inflicted almost simultaneously with the infliction of injury upon him. PW Subhash Chander could not have become unconscious instantaneously so as to miss almost simultaneous attack by accused Rattanlal on the deceased. Learned Sessions Judge has doubted the evidence of PW Dr. R.K. Gupta that PW Subhash Chander could not have become unconscious due to the injury because in his certificate EXPW/ML had himself certified that PW Subhash Chander was unfit to give a statement. The reason advanced by learned Sessions Judge in our opinion is unsound, a person who may not be fit to make a statement has not necessarily to be unconscious. He may due to pain of the injury be not in a fit state of mind to make the statement.
19. Yet another reason for not believing PW Subhash chander that in his cross-examination he has demolished the motive alleged by the prosecution for commission of crime indicated by the learned Sessions Judge is also untenable. It is settled principle of law that where there is direct evidence of crime motive loses its significance. It is true that men do not commit crime without motive but failure to discover motive does not signify non-existence of crime. Failure to discover motive by clinching evidence may be a weakness in the proof of a case but not necessarily fatal as a matter of law. Proof of motive is never an indispensable factor for conviction.
20. Learned Sessions Judge has also found the evidence of eye witnesses unreliable because according to him there is a conflict between ocular and medical evidence. It has been observed by the learned Sessions Judge 'there is not only conflict between ocular and medical evidence but a vital divergence in the statements of doctor witnesses regarding the nature and manner of injuries on the person of deceased Santosh Kumar.'
PW Dr. R.K. Gupta who examined the deceased on the date of occurrence itself has described the injury of the deceased as follows:
Incised wound on the head parietal region 4'x3'x1/2' bleeding present vertically placed. Oozing of blood from parietal region, multiple laceration.
Whereas PW Dr. Anayatullah Sheikh, who conducted the postmortem has observed the following: -
1- A 2cm abrasion with fresh scab on the nose in its upper third region with fracture of the bones under-neath;
2- A lacerated wound on the occipital region with extra-vasation of blood on the occipital region of scalp 1/2' in diameter, depressed fracture of occipital bone.
It has come in the evidence of Dr. R.K. Gupta that he had stitched the wound of the deceased. He has also stated that on 20.3.1993 the then SHO produced one khokhri for his examination and after examination of which he had opined vide EXPWRK/4 that the injury could be caused by the khokhri, whereas PW Dr. Anayatullah Sheikh has testified that khokhri and lathi (seized weapons of offence) shown to him could not have caused the injuries shown in his certificate EXPW2. According to him injury No. 2, which is fatal injury, could be possible by a blunt object with striking surface more than 1/2' in diameter for example hammer. Regarding injury No. 1 he has opined, the same could be possible by falling on a hard surface. So according to learned Sessions Judge there is a conflict in the evidence of doctors on the point of number and nature of injuries.
21. It is true that some discrepancy and conflict has come to fore from the evidence of Dr. R.K. Gupta and Dr. Anayatullah Sheikh over the number and place of injuries as Dr. R.K. Gupta found only one injury on the parietal region whereas Dr. Anayatullah Sheikh has observed two injuries as aforesaid but in our considered opinion this conflict is not real but virtual one and does not affect the veracity of eye witnesses. The fatal injury admittedly was on the head of the deceased. The version of the eye witnesses is also about the injury on the head of the deceased. The area of conflict noticed by the learned Sessions Judge lies in the description of the nature of injuries and number of injuries. Injury No. 1 which was observed by Dr. Anayatullah Sheikh on the nose of the deceased could possibly have been caused due to falling of the deceased on the ground after receiving injury No. 2. Failure of Dr. R.K. Gupta to take notice of the said injury, in our considered opinion, is immaterial as this injury was not the injury, which had caused death of the deceased. The important feature in the evidence of the aforesaid two doctors is that Dr. R.K. Gupta has testified to have observed an incised wound on the head of the deceased which according to him could have been caused by use of khokhri, he story of the prosecution as well as the version of the eye witnesses is that the injury on the head of the deceased was caused by the blow of khokhri inflicted by accused Rattanlal. But Dr. Anayatullah who conducted the postmortem has found a lacerated wound which was not capable of being caused with khokhri and therefore, if Dr. Anayartullah is to be believed it would certainly affect the case of the prosecution and the credibility and veracity of statements of the eye witnesses. In our considered opinion the discrepancy has crept in the evidence of Dr. Anayarullah because he appears to have not taken notice of the fact that the injury on the head of the deceased stood already stitched by Dr. R.K. Gupta much before Dr. Anayarullah conducted the postmortem. Dr. R.K. Gupta who examined the deceased on the day of occurrence has testified that he had stitched the wound of the deceased. There is nothing in the cross-examination or anything on record on the basis of which we can doubt the statement of Dr. R.K. Gupta.
22. If an incised wound is stitched its edges become irregular and if same is examined after reopening the same it is bound to have all the features of a lacerated wound. PW Dr. Anayatuallh's evidence that the injury was lacerated and therefore not capable of being caused with a sharp edged weapon cannot be taken to have demolished the case of the prosecution. In : 2001CriLJ4762 Majju and Anr. v. State of M.P. there was a conflict in the medical evidence and their lordships of the Supreme court observed as follows:
The counsel for the appellants contended that the doctor who conducted the post-mortem examination deposed that there was no incised injuries as stated earlier by another doctor who first examined the deceased Biharilal. In our opinion it is not a serious mistake as there are four eyewitnesses in this case who deposed that appellants Majju alias Nisir and Irashad were having farsis with them and they inflicted cut injuries on Biharilal. PW 8 Dr. Vijay Agarwal conducted the postmortem and described the injuries in a haphazard manner without proper description of the wound as to whether these were incised injuries or lacerated injuries. But the doctor who examined the injured immediately after the occurrence of the incident described the nature of injuries and that is fully in conformity with the oral evidence given by the witnesses. The Sessions Judge as well as the High Court has rightly relied on the evidence of the doctor who prepared the wound certificate of the deceased.
23. In the present case all the four eye witnesses have in one voice stated that accused Rattanlal had inflicted injury with the khokhri on the head of the deceased. Their evidence is fully inconformity with the evidence of Dr. R.K. Gupta and therefore it can safely be held that the deceased had received incised wound, which could be caused with khokhri.
24. Learned Sessions Judge has also doubted the version of the eye witnesses on the ground that if khokhri blow had been given with force on the head of the deceased as was the claim of the eye witnesses, the skull of the deceased could have been cut. As the evidence of PW Dr. Anayatuallh was that there was a depressed fracture, it could not be believed that the injury was caused with khokhri. We cannot accept the reason It cannot always be true that necessarily when sharp edged weapon is used for causing an incised wound on the head it would cut the skull also. Cutting of the skull or fracture thereof would depend upon the force applied in giving the blow. In case force is hot sufficient, the blow given by the sharp edged weapon even if does not cut the skull, it can cause fracture of skull. The discrepancy appearing in the medical evidence thus, in our considered view, does not in any manner affect the veracity of the statements of the eye witnesses, especially that of PW Subhash Chander.
25. The learned Sessions Judge has found the evidence of the eye witnesses at variance with each other for being not acceptable on the ground that there is discrepancy in describing the order in which prosecution witnesses reached on spot. We do not agree. It is only a minor discrepancy. Once presence of the witnesses on spot is accepted, it will not matter in what order the witnesses or the deceased had reached the spot. Presence of the eye witnesses as already said is natural. The evidence of PW Subhash Chander, an injured witness, is found by us truthful, very reliable and confidence inspiring. His evidence on all material particulars has received due corroboration from the evidence of PW Romesh Chander, Vijay Kumar and PW Dhano Devi. Learned Sessions Judge has found the evidence of the said eye witnesses unacceptable for the reason that when tested upon the touchstone of each other's evidence there are discrepancies. As already said the mode adopted by the learned Sessions Judge for appreciation of evidence was not legal. He ought to have assessed and evaluated the evidence of each eyewitness independently on its own merits. We have considered the evidence of the prosecution witnesses and in our view the discrepancies noticed by the learned Sessions Judge are of minor character and do not in any manner affect their credibility. In any case there was no tenable reason to disbelieve PW Subhash Chander. The doubts entertained by the learned Sessions Judge are based upon his fanciful thinking and do not reasonably arise out of the evidence of the case. The rule of benefit of doubt has very well been explained by the Supreme Court in Sucha Singh v. State of Punjab, AIR 2003 3617. It reads as follows:
Exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicion and thereby destroy social defence, Justice cannot be made sterile on the plea that it is better to let hundred guilty escape than punish an innocent. Letting guilty escape is not doing justice according to law. A reasonable doubt is not an imaginary, trivial or merely possible doubt but a fair doubt based upon reasons and common sense. It must grow out of the evidence in the case. If a case is proved perfectly, it is argued that it is artificial; if a case has some flaws inevitable because human beings are prone to err, it is argued that it is too imperfect. One wonders whether in the meticulous hypersensitivity to eliminate a rate innocent from being punished, many guilty persons must be allowed to escape. Proof beyond reasonable doubt is a guideline, not a fetish. Vague hunches cannot take place of judicial evaluation. 'A judge does not preside over a criminal trial, merely to see that no innocent man is punished. A judge also presides to see that a guilty man does not escape. Both are public duties. Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth.
In : 1989CriLJ288 State of U.P. v. Krishan Gopal it was held:
A person has, no doubt, a profound right not to be convicted to an offence which is not established by the evidential standard of proof beyond reasonable doubt. Though this standard is a higher standard, there is however no absolute standard. What degree of probability amounts to 'proof is an exercise particular to each case. Doubts would be called reasonable if they are free from zest for abstract speculation. Law cannot afford any favourite other than truth. To constitute reasonable doubt, it must be free from an over emotional response. Doubts must be actual and substantial doubts as to the guilt of the accused person arising from the evidence, or from the lack of it, as opposed to mere vague apprehensions. A reasonable doubt is not an imaginary, trivial or a merely possible doubt but a fair doubt based upon reason and common sense.
26. Learned Sessions Judge had no justifiable reason to disbelieve PW Subhash Chander. He has also not believed PW Romesh Chander who is another injured eye-witness. As per his evidence when he came to the rescue of his father accused Sunderdas inflicted a lathi blow on his arm. PW Dr. R.K. Gupta who examined him on the day of occurrence observed the following injury on his person:
Abrasion on the left side of the arm 2'x1/2'x1/4'
which in his opinion was simple in nature and could be caused by a blunt object. The defence has not brought anything on record to show that the witness could have received the injury in any other manner than the one stated to by him. The medical evidence thus corroborates his version. In our view PW Romesh Chander whose presence on the spot was natural and could not be doubted has in all material particulars corroborated the version of PW Subhash Chander. His version deserved full reliance but has been rejected unjustifiably by the learned Sessions Judge. The discrepancies pointed out by him in the evidence of PW Romesh Chander are not such which can affect his credibility. The evidence of PW Vijay Kumar and PW Dhano Devi too provides due corroboration to the evidence of PWs Subhash Chander and Romesh Chander, as such, the same ,in our opinion, ought not to have been thrown out of consideration merely on the basis of minor discrepancies which do not go to the root.
27. On the basis of the evidence of said eye witnesses especially Subhash Chander, the prosecution has cogently and reliably beyond any shadow of doubt, in our considered opinion, established that on 9.2.1993 at about 8.30 PM, accused Rattanlal went to the house of the deceased and, told PW Subhash Chander, that his brother accused Kaku was calling him in the lane, on which PW Subhash Chander came in the lane followed by deceased Santosh Kumar and PW Romesh Chander. PWs Vijay Kumar and Dhano Devi also followed them. The moment Subhash Chander reached in the lane accused Kaku Ram inflicted a drat blow which he was having in his hand on the head of PW subhash Chander. The drat blow landed on his forehead, above the left eye and after sustaining injury he fell down. The deceased Santosh Kumar when came forward to rescue his son, accused Rattanlal, who was having a khokhri in his hand, gave a blow with it on the head of the deceased Santosh Kumar. He too fell on the ground and blood started oozing out from his head. On this PW Romesh Chander, the other son of the deceased when came to save his father, accused Sunderdas gave a lathi blow which he was having with him to PW Romesh Chander.
28. The deceased received the fatal injury at the hands of accused Rattanlal alone. The injury as per opinion of PW Dr. Anayatullah was sufficient in the ordinary course to cause death. Therefore, his act falls within the ambit of Section 300 R.P.C. punishable Under Section 302 RFC. So far as accused Kaku Ram and Sunderdas are concerned, they though were armed have not participated in inflicting injury upon the deceased. Therefore, they can not be held responsible for the death of the deceased with the aid of Section 34 RPC as in the facts and circumstances it cannot be held that they shared common intention with accused Rattanlal. The accused Kaku Ram had only inflicted the simple injury on PW Subhash Chander with a sharp edged weapon, therefore, his offence falls within Section 324 RFC for which he deserves to be convicted and punished.
29. As regards accused Sunderdas, the prosecution has proved that he gave a lathi blow to PW Romesh Chander and thereby caused simply injury on him, his act falls in Section 323 RFC. Though it is further case of the prosecution that accused Rattanlal inflicted the blow of khokhri upon the head of the deceased for causing fatal injury on being exhorted by accused Sunderdas, and all the eye witnesses have consistently stated in their evidence that accused Sunderdas had exhorted accused Rattanlal but the said fact appears to us to be doubtful when tested on the touchstone of probability factor. He was present on the scene of occurrence when the occurrence took place with a lathi in his hand and he used his lathi for giving a blow to PW Romesh Chander, but in case of the deceased he is stated to have only exhorted his son accused Rattanlal for killing him. In the circumstances in which the occurrence took place, going by the natural human conduct, if he was intending the murder of the deceased, he would have used his lathi against the deceased instead of simply exhorting his son. Since the evidence of eye witnesses is only that he exhorted his son, the allegation, in our considered view, seems doubtful. Therefore, no liability on this count can be fastened upon him.
30. For the reasons stated above we allow the appeal, set aside the judgment of trial court and accordingly convict accused Sunderdas for offence Under Section 323 RFC for causing simple injury to PW Romesh Chander and sentence him to undergo imprisonment for six months and a fine of Rs. 500/-. In the event of default in payment of fine he shall undergo further simple imprisonment of one month. We also convict accused Rattanlal for commission of the offence Under Section 302 RFC for committing the murder of deceased Santosh Kumar, and sentence him to undergo imprisonment for life and a fine of Rs. 5000/-, in default of payment of which he shall undergo further imprisonment of six months.
31. We also convict accused Kaku Ram Under Section 324 RFC and sentence him to undergo imprisonment for a period of two years. The period for which the accused have remained in detention during trial shall be set off for computing the period of their sentences. From the perusal of the file of the Trial Court we noticed that accused Sunderdas and Kaku Ram have remained in prison as under trial prisoners for over a period of more than two years. They, therefore, shall be deemed to have served their sentences, so need not be sent to prison. Accused Rattanlal shall surrender before the Trial Court for being sent to Jail for suffering his sentence forthwith, failing which learned Trial Court shall cause him to be taken in custody for being sent to prison for suffering his sentence. His bail bonds shall stand cancelled.