IMPORTANT POINT
Where time of death being a material factor to verify the presence of the eye witnesses it was obligatory for prosecution to have clarified the discrepancy between the medical evidence and the oral evidence on that point.

Headnote:Indian Penal Code, 1860-Section 302/149-Offences under-Five persons were tried-Trial Court convicted all-High Court upheld conviction of appellant Moti and acquitted others-Appeals to Supreme Court-Time of incident found of crucial importance-Serious flaw found in prosecution evidence as to the time of incident-No clarification given for alleged discrepancy-Doubt created about presence of eye witnesses at the time of incident-Their evidence also found doubtful-Result-Acquittal of all-Appellant s appeal allowed-State s appeal against acquittal dismissed-Order accordingly.
       Held : Having heard the learned counsel for the parties and perused the material on record, we notice that there is a serious flaw in the prosecution case as to the time of the incident. (Para 11)
       In the instant case, time of death being a material factor to verify the presence of the eye-witnesses it was obligatory for the prosecution to have clarified the discrepancy between the medical evidence and the oral evidence. The prosecution having failed to do so, in our opinion, a serious doubt as to the time of incident and the presence of the eye-witnesses at the time of incident and their narration of the incident also becomes doubtful. Incidentally, we may also notice that even according to the prosecution, appellant Moti had no motive to commit the crime in question. The incident as narrated by the eye-witnesses having taken place in a place where there was no proper light to identify the actual accused who dealt the fatal blow also contributes to the factum of doubt in the prosecution case. Therefore, in our opinion, the prosecution has failed to establish its case against the appellant Moti. (Paras 14 and 15)
       Held consequently : For the reasons stated above, Criminal Appeal No. 388/2000 is allowed and Criminal Appeal No. 389/2000 is dismissed. (Para 17)

JUDGMENT

Santosh Hegde, J.-The appellant in Criminal Appeal No. 388/2000 was charged along with four other accused persons for having committed murder of one Ram Briksha on 18.6.1979 at about at about 9.30 p.m. The learned Sessions Judge who tried the said accused persons in S.T.No. 31/1980 found all the accused persons including the appellant herein guilty of the offences charged and convicted them for offences punishable under Section 302 IPC read with Section 149 IPC and imposed the sentence of imprisonment for life. While doing so, the learned Sessions Judge relied upon evidence of PWs. 2 to 5 who were produced by the prosecution as eye witnesses.

2. The aggrieved accused persons preferred an appeal before the High Court of Judicature at Allahabad in Criminal Appeal No. 1622/1980. The High Court rejected the evidence of PWs.3 and 4 as not believable but relied on the evidence of PW-2, the mother-in-law of the deceased and PW-5, the wife of the deceased and based on their evidence while acquitting the other accused persons convicted the appellant alone by confirming the judgment of the learned Sessions Judge and awarded to the appellant punishment under Section 302 read with Section 149 IPC.

3. It is against the said judgment of the High Court convicting the appellant herein, the appellant has preferred Criminal Appeal No. 388/2000.

4. The State has preferred the connected Criminal Appeal No. 389/2000 against the acquittal of the other accused.

5. The entire prosecution case as accepted by the High Court in this case so far as appellant Moti is concerned rests on the evidence of PWs. 2 and 5.

6. The brief facts necessary for the disposal of these appeals are that on 18.6.1979 at about 9.30 p.m. When the deceased and his father-in-law Ram Nath (since dead) were sitting outside the house of his father-in-law, the accused persons came there. At that time appellant was armed with a spear and the other accused persons were armed with lathis. Thereafter, the prosecution states that on an exhortation made by Bhola and Mahatam, the respondents in the connected appeal, all the five accused persons assaulted the victim with lathis and thereafter dragged him to the courtyard of the house of appellant Moti which was nearby where the appellant Moti allegedly gave a blow with the spear on the chest of the deceased and others gave him lathi blows consequent to which he died. The complaint of this incident was given by the father-in-law Ram Nath at Balipar Police Station on 19.6.1979 at about 0030 hrs. with PW-3 Dilraj. The said Station House Officer of the Police Station registered the complaint and the investigation was subsequently conducted by PW-8 Devi Sharan Singh, Sub Inspector. On completion of the investigation, as stated above, a charge-sheet under Sections 147, 148, 149 and 302 IPC was lodged against all the accused persons. After completion of the trial all the accused persons were convicted by the learned Sessions Judge, as stated above, based on the evidence of eye witnesses PWs.3 to 5. While the High Court disbelieving the evidence of PWs.3 and 4 allowed the appeal of the four accused persons but convicted the appellant Moti, as stated above.

7. During the pendency of these appeals, accused Chinku who is respondent in Criminal Appeal No. 389/2000 has died and the appeal has abated as against him.

8. Shri U.U. Lalit, learned counsel appearing for the appellant Moti in Criminal Appeal No. 388/2000 submitted that both the courts below have seriously erred in not noticing the medical evidence which clearly establishes the falsity of the prosecution case in regard to the time of incident. He contended that the incident in question could not have happened at 9.30 in the night and must have happened much earlier in the day which was not noticed by anybody and it is only subsequently when the body of the deceased was found, based on suspicion the appellant as well as the other accused persons were implicated in this case. He also pointe

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2003 Supreme(SC) 295

IMPORTANT POINTWhere time of death being a material factor to verify the presence of the eye witnesses it was obligatory for prosecution to have clarified the discrepancy between the medical evidence and the oral evidence on that point.

IMPORTANT POINT
Where time of death being a material factor to verify the presence of the eye witnesses it was obligatory for prosecution to have clarified the discrepancy between the medical evidence and the oral evidence on that point.