2002 Supreme(SC) 56

2002(1) Supreme 130
SUPREME COURT OF INDIA
(From Punjab and Haryana High Court)
Umesh C. Banerjee and N. Santosh Hegde, JJ.
State of Haryana -Appellant
versus
Ram Singh -Respondent
Criminal Appeal No. 78 of 1999
With
Criminal Appeal No. 79 of 1999
Decided on 15-1-2002
Counsel for the Parties :
For the Appearing Parties : Mahabir Singh, S.D. Sharma, Uma Datta, Rishi Malhotra, Tarun Sharma, Kishan Datta, Rajesh Kr. Sharma, Ms. Shalu Sharma, Pramod Kr. Yadav, Advocate for Goodwill Indeevar, Advocate/Advocates.

IMPORTANT POINT
Though post mortem report by itself is not a substantive piece of evidence, but the evidence of doctor conducting the postmortem is significant vis-a-vis the injuries appearing on dead body and likely use of the weapon thereof.

Headnote:(i) Evidence Act, 1872-Medical evidence-Post mortem report and doctor s evidence-Difference.

       Held : While it is true that the postmortem report by itself is not a substantive piece of evidence, but the evidence of the doctor conducting the postmortem can by no means be ascribed to be insignificant. The significance of the evidence of the doctor lies vis-a-vis the injuries appearing on the body of the deceased person and likely use of the weapon therefor and it would then be the prosecutor s duty and obligation to have the corroborative evidence available on record from the other prosecution witnesses. (Para 1)

       (ii) State s appeal against acquittal of Ram Singh from offence under Sections 302/149 IPC-Ram Singh arrested on 13.2.1992 but disclosure statement is of 29.1.1992 in pursuance of which gold ring of deceased was recovered-His involvement found doubtful-Result-Appeal dismissed-(Indian Penal Code, 1860)-Sections 302/149 -Evidence Act, 1872-Section 27). (Paras 6, 11 and 21)

       (iii) Indian Penal Code, 1860-Sections 302/149-Conviction under-Upheld by High Court-Appeal against -Apex Court finding that medical evidence as available on record demolishing prosecution case (see paras 8 to 12)-Evidentiary value of discoveries-Disclosures, discoveries and even arrests made in presence of three specific persons-No independent witness-Rejection of defence case improper-Result-Appeal allowed resulting in their acquittal.

       Held : The judgment under appeal admittedly does not contain a whisper even pertaining to the contradictions between eye-witnesses account and the medical evidence. In the contextual facts and as noticed above, medical evidence runs positively counter to the eye-witnesses account rendering the ocular testimony not being dependable or trustworthy. There is no credible evidence on record. It is significant that all the so-called eye-witnesses were produced in Court by the police from its custody in handcuff condition and it is only on the witness box that the handcuffs were released and taken up from the body of the person. All of them are under-trial prisoners being involved in a murder trial. The Court thus has to scrutinise its evidence with a little bit of caution and scrutiny so as to judge their veracity. Admittedly all the supposed eye-witnesses are relations of the deceased. As such they fall within a category of interested witnesses. It is not that the evidence ought to be discredited by reason of the witness being simply an interested witness but in that event the Court will be rather strict in its scrutiny as to the acceptability of such an evidence. High Court has principally relied on the 161 statements and the contradictions available on the record have not been taken note of. In our view this is a clear error on the part of the High Court. Some weapons have been seized along with the cartridges and it has been stated that such recovery was effected in terms of the disclosure statement. Before this Court it has been strongly urged that the same is in contravention of Section 27 of the Evidence Act. Undoubtedly, Section 27, though provides an exception, but the Court should always be vigilant about the circumvention of its provision (Para 13)

       Significantly all disclosures, discoveries and even arrests have been made in the presence of three specific persons, namely, Budh Ram, Dholu Ram and Atma Ram - no independent witness could be found in the aforesaid context - is it deliberate or is it sheer coincidence - this is where the relevance of the passage from Sarkar on Evidence comes on. The ingenuity devised by the prosecutor knew no bounds - Can it be attributed to be sheer coincidence? Without any further consideration of the matter, one thing can be more or less with certain amount of conclusiveness be stated that these at least create a doubt or suspicion as to whether the same has been tailor-made or not and in the event of there being such a doubt, the benefit must and ought to be transposed to the accused persons. The trial Court addressed itself on scrutiny of evidence and came to a conclusion that the evidence available on record is trustworthy but the High Court acquitted one of the accused persons on the basis of some discrepancy between the oral testimony and the documentary evidence as noticed fully herein before. The oral testimony thus stands tainted with suspicion. If that be the case, then there is no other evidence apart from the omni present Budh Ram and Dholu Ram, who however are totally interested witnesses. While it is true that legitimacy of interested witnesses cannot be discredited in any way nor termed to be a suspect witness but the evidence before being ascribed to be trustworthy or being capable of creating confidence, the Court has to be consider the same upon proper scrutiny. In our view, the High Court was wholly in error in not considering the evidence available on record in its proper perspective. The other aspect of the matter is in regard to the defence contention that Manphool was missing from village for about 2/3 days and is murdered on 21.1.1992 itself. There is defence evidence on record by DW-3 Raja Ram that Manphool was murdered on 21.1.1992. The High Court rejected the defence contention by reason of the fact that it was not suggested to Budh Ram or Dholu Ram that the murder had taken place on 21.1.1992 itself and DW-3 Raja Ram had even come to attend the condolence and it is by reason therefor Raja Ram s evidence was not accepted. Incidentally be it noted that the evidence tendered by defence witnesses cannot always be termed to be a tainted one - the defence witnesses are entitled to equal treatment and equal respect as that of the prosecution. The issue of credibility and the trustworthiness ought also to be attributed to the defence witnesses at par with that of the prosecution. Rejection of the defence case on the basis of the evidence tendered by defence witness has been effected rather casually by the High Court. Suggestion was there to the prosecution s witnesses in particular PW 10 Dholu Ram that his father Manphool was missing for about 2/3 days prior to the day of the occurrence itself - what more is expected of the defence case : a doubt or a certainty - jurisprudentially a doubt would be enough : when such a suggestion has been made prosecution has to bring on record the availability of the deceased during those 2/3 days with some independent evidence. Rejection of the defence case only by reason thereof is far too strict and rigid a requirement for the defence to meet - it is prosecutor s duty to prove beyond all reasonable doubts and not the defence to prove its innocence - this itself is a circumstance, which cannot but be termed to be suspicious in nature. Considering the aforesaid, we do feel it expedient to record that the High Court fell into a manifest error in coming to a conclusion as reflected in the judgment under appeal and which thus cannot be sustained. The appeal (Criminal Appeal No. 79/1999), therefore, succeeds and is allowed and the appellants be released from the custody, if not required in any other proceeding. (Paras 19 and 20)