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2009(3) Supreme 77
SUPREME COURT OF INDIA
S.B. Sinha, Dr. Mukundakam Sharma and R.M. Lodha, JJ.
Rajendra & Anr. — Appellants
versus
State of Uttar Pradesh — Respondent
Criminal Appeal No. 1254 of 2005
Decided on : 08-04-2009
Medical Evidence – Appeal against conviction – Plea of appellant that prosecution case was not corroborated by medical evidence – Held medical evidence corroborated prosecution case – The circumference of well was about three meters – PW7 autopsy surgeon, found eyes of deceased half open and the nails of hand and feet bluish – He further found Kuti Sansaria which is goose-skin/goose-flesh in the foot-base (Talwa) – Small particles of sand were found in the wind pipe – Lungs were found to have air bubbles – There existed blood on the left hand side of the heart and the right side was found to be empty – According to him, the death took place 12 hours before post mortem examination – The cause of death, in his opinion, was due to drowning which caused asphyxia – In his cross-examination, he stated that it might be possible that the deceased had committed suicide – But that was only a possibility – If the evidence of the eye-witnesses was to be believed and found to be reliable only because autopsy surgeon talked of some other possibility, would not lead to the conclusion that the medical evidence did not corroborate the prosecution case. (Para 15)
Facts of the Case :
1. Accused persons three in number were prosecuted herein in the instant case for causing death of deceased by assaulting him with kicks and fists, dragging him and throwing him in a well.Trial Court while acquitting A1, convicted A2 and A3.Appeal thereagainst was dismissed by High Court.
2. Present appeal, has been filed against said order of High Court.
Findings of the Court :
Even though no injury was found on person of deceased but it had to be borne in mind that he was assaulted with fists and kicks. Although PW1, in the FIR, stated about throttling, evidently, neck was not pressed to such an extent which would leave a mark of an injury. Both PW1 and PW4 categorically stated that somebody had caught deceased by neck and others caught his feet and he was taken near the well and was dropped. Apart from the statements made by PW1 and PW4 which were sufficient to bring home charges as against appellant although PW3 was declared hostile, he also, to some extent, supported the prosecution case. Indisputably, the said witness had gone back from his statement made before the Investigating Officer .In his deposition, however, he stated that he had seen a crowd and had also witnessed that deceased was being taken out of the well. Thus, the fact that immediately after the death a crowd had assembled and people were talking about the death having been caused to the deceased by accused persons , to some extent, supported the prosecution case. Although PW3 was declared hostile, a part of his statement could be taken into consideration for the purpose of finding out as to whether the appellants were guilty of commission of the said offences or not. It is a well settled law that the evidence of a hostile witness may not be totally rejected, and subject to closure scrutiny, a portion thereof which is consistent with the case of prosecution or defence, may be accepted. Appeal having no merit was dismissed.
Result : Appeal dismissed.
JUDGMENT
S.B. Sinha, J.—
1. The sole surviving appellant, Rajendra (Narpat, Appellant No.2 having died during the pendency of this appeal) is before us aggrieved by and dissatisfied with a judgment and order dated 23.9.2004 passed by the Division Bench of the High Court of Judicature at Allahabad in Criminal Appeal No.181 of 1982 affirming a judgment of conviction and sentence dated 20.1.1982 passed by the Vth Additional Sessions Judge, Ghaziabad in Sessions Trial No.183 of 1981 under Section 302 read with Section 34 of the Indian Penal Code and sentenced him to suffer rigorous imprisonment for life.
2. The prosecution case, as disclosed in the first information report lodged with the Dadari Police Station by Phoolwati (PW1), wife of the deceased Ratiram on 27.5.1981 is as under:
Ratiram was a Goldsmith. He received some ornaments from the appellant. However, he did not return the same. He had been assaulted a couple of times by the appellants. He left the village for Kanpur. He has two sons, Govinda and Jahangir Ram. Govinda also went outside the village in ‘pursuit of his new field of engagement’. Appellants are stated to have visited the house of the deceased and made enquiries in regard to his whereabouts from Phoolwati (PW1). Eight days prior to the incident, Govinda had returned home. Phoolwati was again asked as to when the deceased would return to the village. She asked for an assurance that he would not be assaulted. Richhpal who was Pradhan of the village (since acquitted) allegedly gave her such an assurance. Govinda thereafter went to Kanpur to ask the deceased to come back to the village. He reached his village at about 6.00 am in the morning. At about 7 - 7.30 am, the accused allegedly came with Ratiram. Return of the ornaments was demanded to which the deceased replied that he would repay the debt in due course. He was assaulted. One of them put his hand around his neck. He was bodily lifted. While he was being carried, he clutched to the door frame which also came out. He was thereafter said to have thrown in a nearby well. He died of asphyxia.
3. Phoolwati went to the Police Station which was about three furlongs away from the village. A First Information Report (FIR) was lodged at about 7.50 am. In the said FIR, presence of Munna (PW1), Surajbhan (PW3) and Jahangir Ram (PW4), minor son of the deceased was disclosed. The Investigating Officer came to the village. The dead body was taken out of the well at about 10.00 am and was sent for post mortem. In the post mortem, the cause of action for death was stated to be asphyxia due to drowning. No injury on the person of the deceased was, however, noticed.
4. Although in the FIR, the assailants of the deceased were said to be Narpat, Rajendra and Richhpal (Pradhan of the village); Phoolwati (PW1) as also Jahangir Ram (PW4) in their depositions stated that Richhpal did not participate in the commission of the crime and according to them, an unknown person had come with Narpat and Rajendra. In view of the aforementioned statement by PW1, she was declared hostile. Munna (PW2) and Surajbnan (PW3) also did not support the prosecution case in its entirety. PW4, the minor son of the deceased, however, supported the prosecution case.
5. The learned Sessions Judge acquitted Richhpal, accused No.1, and recorded a judgment of conviction against Narpat and Rajendra and sentenced them to undergo rigorous imprisonment for life. An appeal was preferred thereagainst. On the date of hearing, i.e. 30.4.2007, however, the appellants were not represented. It was again listed on 17.8.2004. As even on that day, nobody appeared on behalf of the appellants, the High Court took up the hearing of the matter and heard the learned counsel for the State. The judgment of conviction and sentence passed by the learned Trial Judge was affirmed.
6. Mr. Sushil Kumar, learned senior counsel appearing on behalf of the appellant, would submit:
1) PW1, Phoolwati, PW2, Munna and PW3, Surajbhan, having b
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