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1998(4) Supreme 167
SUPREME COURT OF INDIA
(From Allahabad High Court)
M.M. Punchhi CJI, K.T. Thomas and S. Rajendra Babu, JJ.
State of U.P. -Appellant
versus
Harban Sahai & Ors. -Respondents
Criminal Appeal No. 692 of 1993
Decided on 20-4-1998
(Note : There is some error or misprint in the name of deceased)
Counsel for the Parties :
For the Appellant : Arvind Kumar, Advocate for A.S. Pundir, Advocate.
For the Respondents : S.P. Singh Rathore, Advocate for Anil Kumar Gupta-II, Advocate, Debasis Misra, Advocate (NP).
Held : The aforesaid criterion is the result of a strained reasoning. It is understood that "Kanta" without sharp projection at the end would be a mere stick or lathi. If the nephew of the deceased mention in the FIR that assailants were armed with lathis and guns there is no reason to conclude that the informant when he gave first information had ruled out the possibility of Kanta being used by the assailants. FIR is not a chronicle of the exhaustive details of the occurrence, not is it a catalogue of everything including minor particulars of the events which took place. Picking out an insignificant discrepancy regarding description of one of the weapons for jettisoning an otherwise sturdy account of the eye-witness is not a commendable approach in evaluation of evidence. (Para 8)
A doctor who conducted post-mortem examination or examined an injured person is usually confronted with such questions regarding different possibilities or probabilities of causing those injuries or post-mortem features which he noticed in the medical report. But the answers given by the witness to such questions need not become the last word on such possibilities. After all he gives only his opinion regarding such questions. But to discard the testimony of an eye-witness simply on the strength of such opinion expressed by the medical witness is not conducive to the administration of criminal justice. [Vide Piara Singh & Ors. v. State of Punjab (AIR 1977 SC 2274)], Manga v. State of Haryana (AIR 1979 SC 1194), Ramdev & Anr. v. State of Uttar Pradesh (1995 Supp. (1) SCC 57). (Para 9)
In this case, High Court has over-looked the fact that even the admitted gun-shot injury was "on the left temporal region". If such an injury could be caused while both were running then it is equally possible that a gun-shot injury can as well be caused on the "right side of the face". It would be waird to assume that the running man s head would not have swivelled to either side. That apart, it is not necessary that the bullet emanated from the gun should have hit the target, as it might have just by-passed him. At any rate, the said reasoning of the High Court is too fragile for throwing the evidence of an eye-witness over-board. (Para 10)
Omission to send the earth collected from the place of occurrence for chemical examination has not vitiated the investigation to any extent. We disapprove the aforesaid reasoning of the High Court. (Para 11)
Held finally : In our view, the High Court has benefited the accused with an unjust and unmerited acquittal based on certain reasons which are wholly insupportable. (Para 16)
(ii) Appeal against acquittal-Accused had a strong motive for murder-Incident seen by two eye witnesses-One of them (P.W. 1) lodging FIR quickly with vivid details-His version found to be truthful-The other (P.W. 2) was a natural witness-No reason to falsely implicate-His testimony was acceptable to Trial Court-Reasons given for rejecting their evidence by High Court were found to be unjust and unsupportable-Effect-Acquittal set aside and conviction restored (IPC 1860-Sections 302/ 34). (Paras 13 to 16)
Held : We, therefore, reverse the order of acquittal and restore the conviction and sentence passed by the Sessions Court. We direct the Sessions Court to take necessary steps to put respondent No. 2, Sarwan Sahai, No. 3, Virendra and No. 4, Vimlesh back in jail for undergoing the sentence. The appeal is thus allowed. (Para 17)
JUDGMENT
Thomas, J.-This appeal by special leave is by the State of Uttar Pradesh challenging the acquittal order passed by a Division Bench of the Allahabad High Court in a murder case. The Sessions Court had convicted four accused under Section 302 read with Section 34 of Indian Penal Code and sentenced all of them to imprisonment for life and it was on their appeal that the conviction was reversed. The four accused were arrayed in this appeal as respondents, but first respondent Harban Sahai passed away during the pendency of this appeal. So the case was considered only as against the remaining three respondents. They are: 2nd accused-Sarwan Sahai, 3rd accused-Virendra and 4th accused-Vimlesh.
2. The genesis of the events which led to the occurrence in this case was the murder of Virendra s father (Shyam Manohar) in 1976. In that murder case P.W. 1 (Shashi Bhushan) and his uncle (Jagdish Prasad - the deceased in this case) were challaned by the police as accused which ended in their conviction by the trial Court. They filed an appeal before the Allahabad High Court. During the pendency of that appeal their sentence was suspended and they were released on bail just a couple of days prior to the incident in this case. First accused (Harban Sahai) and second accused (Sarvan Sahai) are the nephews of Shyam Manohar. The fourth accused (Vimlesh) in his grandson. As pointed out above, third accused (Virendra) is the son of Shyam Manohar.
3. The incident in this case happened on 16.1.1978. Prosecution version is thus: Shyam Manohar (sic) (deceased) and his nephew Shashi Bhushan (P.W. 1) were walking through the sugarcane field belonging to one Maik. The time was then around 4.30 p.m. They saw the fourth accused emerging from the north of that field. First accused (Harban Sahai) and fourth accused (Vimlesh) had guns with them and others had lathis. Seeing the deceased and Shashi Bhushan the third accused (Virendra) yelled out that they would avenge for the murder of their father. Sensing the on-rushing danger P.W. 1 and deceased scampered away, but they were chased by the assailants. A1 (Harban Sahai) and A4 (Vimlesh) fired their guns and Shyam Manohar fell on the ground, while P.W. 1 succeeded in escaping by running towards a different direction. Second accused (Sarwan Sahai) and third accused (Virendra) went near the fallen victim and lambasted him with sticks. When some local people rushed to the scene the assailants made their escape good. Shyam Manohar was taken in the bullock-cart to the hospital but on the way he breathed his last.
4. The First Information Report was lodged by P.W. 1 (Shashi Bhushan) at the local police station in which he mentioned all the details of the occurrence including the names of the accused as well as the names of those who reached the place on hearing the commotion.
5. P.W. 7 (Dr. R.S. Pandey) of the District Hospital, Moradabad, conducted post-mortem examination on the dead body of Shyam Manohar. He noted ten anti-mortem injuries on the body including five lacerated wounds and one incised wound on the right chest which did not gape into the cavity. Among the lacerated wounds one was ostensibly a gun-shot wound on the left temporal region associated with a fracture. One pellet was found embedded in the brain. That wound is described as injury No. 7 in the post-mortem certificate issued by the doctor.
6. Sessions Judge found that evidence of P.W. 1 (Shashi Bhushan) and P.W. 2 (Shiv Sagar Lal) are quite reliable basing on their testimony. The trial Court convicted all the accused.
7. But the High Court found the evidence of the two eye-witnesses not worthy of credence. One of the reasons high-lighted by the High Court is that both eye-witnesses said in Court that one of the lathis was a Kanta (a stick with a knife like portion on one end) whereas in the FIR, the informant had said that only lathis and guns were employed by the assailants. According to the High Court the witnesses purposely made the said im
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