Dinesh & Anr. Vs. State of Haryana
EmailAppeal: Criminal Appeal No. 1076 of 2000
Petitioner: Dinesh & Anr.
Respondent: State of Haryana
Apeal: Criminal Appeal No. 1076 of 2000
Judges: R.C. LAHOTI & P. VENKATARAMA REDDI, JJ.
Date of Judgment: Oct 10, 2001
Head Note:
CRIMINAL LAW
Indian Penal Code, 1860
Section 302/34 with Evidence Act, 1872 – Sections 3, 45 – Murder – Three accused – Father and two sons – Father armed with ‘farsa’ and sons armed with ‘ballams’ – Father died during trial – Sons convicted on evidence of son of victim (PW8) and brother (PW6) – Both allocating role of assault to all three accused – Medical evidence finding four injuries – Injury nos. 1 and 4 possible by fall – Injury nos. 2 and 3 by sharp-edged weapon – PWs, however, stating all three assaulted – One, out of two sons giving ballam blow in thrusting way – Not corroborated by medical evidence – PW8 also deposing assault on him but no injury – PW6 doubted having seen the incident. Held that in absence of corroboration by medical evidence, it is not possible to find exact number of assailants. Two sons (appellants) are entitled to benefit of doubt.
Held:
According to all the three accused persons participated in the assault on Santra Devi, meaning thereby that the injured must have sustained injuries by farsa and ballam and if all the three accused dealt blows then a minimum of three such injuries must have been sustained by Santra Devi. (Para 8)
According to narration of the incident, if all the 3 accused persons had participated in the incident, at least three injuries, all by sharp-edged weapons like farsa and ballams, must have been sustained by the injured. (Para 10)
The perusal of the injuries sustained by Santra Devi and as described by Dr. Arvind shows that on the parietal region, there are only 2 injuries – both incised wounds. If at all there was assault on Santra Devi, probability lies more on the side of the two incised wounds on the person of Santra Devi having been caused by farsa which is alleged to have been weilded by accused Balbir. According to Jagdish (PW6) ballam was used ‘in thrust way’ in which case there should have been a punctured or penetrating wound rather than an incised wound. The conclusion which follows from the absence of the testimony of Jagdish being corroborated by medical evidence is that either he did not witness the occurrence or the occurrence did not take place in the manner as narrated by this witness.(Para 12)
The question is one of fixing the responsibility for the injuries caused to her. Looking at the number and nature of injuries and the prosecution version, it appears to be highly improbable that the number of accused armed with sharp edged deadly weapons like farsa and ballams was three and all of them had assaulted Santra Devi. The prosecution cases appears to be highly exaggerated and embellished. If the prosecution has tried to implicate three persons – the father and the two sons, while only one or two of them might have assaulted the injured Santra Devi and positive role is assigned to the three accused persons which is not corroborated by medical evidence, the court is left guessing about the exact number of assailants and the manner in which they may have assaulted the injured. The present one is the case where a little grain has been mixed up with so much of chaff that it is almost not possible to separate the grain. (Para 16)
There is a reasonable doubt about these two accused appellants having participated in the incident and in the manner as alleged by the prosecution, the benefit whereof must go to them. (Para 17)
JUDGEMENT:
ORDER
1. One Balbir Singh and his two sons Dinesh and Dayanand, were tried on charges under section 302 read with section 34 IPC. The accused Balbir Singh expired during the pendency of the trial in the sessions court. Accused Dinesh and Dayanand were found guilty by the trial court of the offence charged and each was sentenced to undergo imprisonment for life and a fine of Rs. 1000/- and in default of payment thereof to undergo further imprisonment for a period of two months. The two accused preferred an appeal before the High Court which has been dismissed. Both the accused persons have filed this appeal by special leave, feeling aggrieved by their conviction and sentence awarded by the trial court and maintained by the High Court.
2. The appellants are residents of village known as Choki no. 1. Santra Devi, the victim who died in the occurrence, was the wife of Beer Singh. Rajbir PW8 who lodged the FIR of the offence is her son. He was aged about 16 years at the time of the incident. The prosecution case as set out in the FIR is that on 13.10.93 Rajbir saw buffalo of late Balbir destroying crops in his field. Some altercation or verbal exchange appears to have taken place at that point of time between Rajbir and accused Dinesh. Dinesh dealt a blow on Rajbir with the chain which is used for tying buffalo. Thereafter, both of them left the field. Rajbir went to his home and complained to his mother Santra Devi. At about 5.00 or 5.30 p.m. Rajbir accompanied by his mother was going to his field. On the way, when they were crossing the plot of one Ram Mohan, all the three accused persons came there. Balbir was armed with farsa. Dinesh and Dayanand were armed with ballams. They were hurling abuses. They opened an assault on Santra Devi. Rajbir raised an alarm which attracted Jagdish, his maternal uncle and Ram Narain. On seeing them, the three accused persons fled away. Santra Devi fell down having sustained 4 or 5 serious injuries on her head. She was immediately taken to a hospital at Rewari. Santra Devi was unconscious.
3. The doctor at Rewari hospital, looking at the serious condition of injured Santra Devi, referred her to Safdarjang Hospital, Delhi where she was admitted indoors sometime in the night. It appears that family members of Santra Devi were busy looking after her as her condition was serious and therefore they could not afford to go to police station for lodging FIR. However, Laxmi Singh, ASI of P.S. Jatusana met Rajbir at the bus stop of village Palhawas. The ASI was there investigating some other offence of theft and house-breaking relating to his police station. He recorded the statement of Rajbir which was forwarded to the police station and registered as first information report of the incident. Santra Devi died sometime in the evening of 14.10.93. Her statement could not be recorded as she remained unconscious. On 15.10.93 postmortem on her dead body was performed by Dr. Arvind Thergbonkar, PW1 who found Santra Devi to have sustained the following injuries on her person:-
1. Abrasion on left side of cheek measuring 10 cms. x 6 cms. irregular in shape.
2. An incised wound 6 cms. x 1 cm. x bone deep on right side of front of parietal region, slightly curved in nature. The anterior end is 7 cms. behind a right orbit, 3 cms. lateral to mid-line on left side, 22 cms. anterior to back of hairline.
3. An incised wound on left parietal region, 4 cms. long 0.5 cm. broad x bone deep. It is situated 3 cms. lateral and left to mid-line and 20 cms. front of posteriors hairline.
4. Abrasion on right forearm measuring 4 cms. x 1 cm. irregular in shape.
4. On internal examination, a depressed comminuted fracture on left parietal region extending to both sides of frontal region interiorly and fracture line also extending to left parietal bone and left temporal region were found. There were other internal damages in the parietal region. The brain was soft and swollen. In the opinion of Dr. Arvind, all the injuries were ante-mortem in nature, the cause of death was cranio cerebral damage which could have been caused due to sharp-edged weapon like an axe. Injuries 2 and 3 were individually and collectively sufficient in ordinary course of nature to cause death. Injuries nos. 1 and 4 could have been caused due to fall on rough surface. During cross examination Dr. Arvind further opined that the possibility of comminuted fracture from right to left having been caused by a single blow could not be ruled out.
5. The three accused persons were arrested on 23.10.93. On the statements given by the three accused persons whilst in custody a farsa and two ballams were recovered. Forensic science laboratory confirmed presence of blood on farsa. Nothing such could be detected on ballams.
6. The prosecution case rests on the ocular evidence of Rajbir PW8 and Jagdish, PW6. Ram Narain who was admittedly present with Jagdish and had witnessed the incident in the same manner in which Jagdish PW6 did, was not examined at the trial and was given up by the prosecution on the ground that he was won over by the accused and was not willing to speak the truth. Jagdish, PW6 is maternal uncle of Rajbir, PW8, that is, brother of the deceased. Ram Narain, the other eyewitness, not examined, is Santra Devi’s sister’s husband. The statements of the two witnesses – Rajbir and Jagdish, have been relied upon by the trial court as also by the High Court for the purpose of recording finding of guilt against the accused persons.
7. Shri U.R. Lalit, learned senior counsel for the appellants, assisted by Shri K.B. Rohtagi, Advocate, vehemently attacked the testimony of both the eyewitnesses and submitted that the testimony of Rajbir is too vague to draw any inference of guilt against the accused persons, while it is rightly doubtful if Jagdish, PW6 was at all present in the village when the occurrence took place and was an eyewitness. It is also submitted by him that the investigator as also the conduct of the prosecution at the trial, suffers from certain serious infirmities, the benefit whereof should not be denied to the accused persons. It was also submitted by him that the trial court and the High Court have spun out a case for the prosecution which is much in departure from the prosecution story and deserves to be discarded for this reason.
8. In the light of the submission so made we would scrutinise the testimony of the two eye-witnesses Rajbir, PW8 stated that earlier on the same day Balbir’s buffalo had destroyed the crop in his field and he and his mother were going to the field to make a complaint to Balbir where they met Dinesh. Rajbir asked Dinesh to take out buffalo from his field whereupon Dinesh assaulted him with the chain. Rajbir then ran towards his house. On the way, he and Santra Devi were surrounded by Balbir, Dinesh and Dayanand respectively armed with farsa and ballams. They started hurling abuses and assaulted Santra Devi. Santra Devi sustained injuries and fell down and became semi-conscious. Her cries attracted Jagdish and others who were standing at the bus stop. Jagdish and Rajbir lifted Santra Devi and brought her to the house. Thereafter she was taken to the hospital. During cross examination he was confronted with his police statement wherein he has not stated that he and his mother were going to lodge a complaint to Balbir when the occurrence took place. The assault with chain by accused Dinesh did not cause any visible injury on the person of Rajbir. He had intervened to save her mother from the assault by the accused persons but he did not succeed. All the three accused had tried to assault Rajbir also but he did not sustain any injury. About 10 to 20 persons of the village gathered there but no one tried to intervene or apprehend any of the accused persons while they were escaping from the scene of occurrence. It is pointed out by the learned counsel for the accused appellants that there are same notable features of the testimony of Rajbir in so far as the assault on Santra Devi is concerned. The witness does not specify as to which of the accused’s blow with his weapon landed on which part of the body of Santra Devi. His statement is a general omnibus statement. The total description of the assault as given by Rajbir is in one sentence – “when we reached near the house of (plot of) Ram Mehar, Balbir son of Ramsarup armed with a farsa, Dinesh son of Balbir armed with a ballam, and Dayanand son of Balbir armed with a ballam came towards us while abusing and started beating my mother Santra Devi.” However, the fact remains that according to him, all the three accused persons participated in the assault on Santra Devi, meaning thereby that the injured must have sustained injuries by farsa and ballam and if all the three accused dealt blows then a minimum of three such injuries must have been sustained by Santra Devi.
9. According to Jagdish PW6, he is a resident of village Pahari (Rewari). On the date of occurrence, he had come to this village at about 11.00 a.m. The purpose of his visit was to take Ram Narain’s daughter to stay with him and to cook food for him as his wife, having met with an accident, was bed ridden. However, Ram Narain’s daughter was not there and therefore he was returning to his village. He had come to bus stop and Ram Narain had also come to bus stop to see him off. The bus stop is at a distance of about 100 yards from the place of occurrence. He heard the voice of Rajbir shouting ‘meri maan ko bachao’ (save my mother). On hearing such cries he and Ram Narain both rushed to the scene of occurrence and saw Balbir armed with farsa and Dayanand and Dinesh armed with ballams, running towards their house, having inflicted injuries on Santra Devi. However, the witness went on to say that from a distance, within his viewing. he had seen “accused giving farsa blow to Santra, Dinesh giving ballam blow in thrust way bold on the head of Santra Devi, Dayanand also gave a ballam blow which hit at Santra Devi on her head”.
10. In the submission of learned counsel for the appellants so far as the assault on Santra Devi is concerned, according to Jagdish, accused Balbir did give a blow landing on Santra Devi without specifying the part of the body where the blow had landed. Accused Dinesh gave ballam blow in thrust way hitting on the head of Santra Devi. The accused Dayanand also gave a ballam blow which landed on the head of Santra Devi. According to such narration of the incident, if all the 3 accused persons had participated in the incident, at least three injuries, all by sharp-edged weapons like farsa and ballams, must have been sustained by the injured.
11. We have perused the seizure memo prepared by the investigating officer whereby the three weapons of offence were seized. So far as farsa seized from accused Balbir is concerned, we need not make any comment thereon inasmuch as farsa is a generally known weapon and its structure is a matter of common knowledge. However, so far as ballams are concerned they, have been described as ‘jelli ballams’ in the seizure memos as also in the evidence. Their description, specially of the sharp edge head is not given in the seizure memos. It is not clear if the head was a round sharp edge or a flat double-edge. On seizure, the weapons were not referred to Dr. Arvind for soliciting opinion if the injuries as sustained by Santra Devi could have been caused by the weapons which were seized as weapons of offence. When Dr. Arvind appeared in the witness box, then also, neither the prosecutor (whose primary duty it was) nor the learned judge presiding over the trial, took care to show the weapons to him and solicit opinion of Dr. Arvind whether the injuries suffered by Santra Devi could have been caused by any of the weapons exhibited in the court.
12. The perusal of the injuries sustained by Santra Devi and as described by Dr. Arvind shows that on the parietal region, there are only 2 injuries – both incised wounds. The other two injuries are abrasions – one, on left side of cheek, and the other, on right forearm. Both are irregular in shape. The medical opinion, as expressed before the trial court, is that in so far as these two injuries are concerned they were more likely to have been caused by fall on rough surface. Thus, we are left with only 2 injuries on the person of Santra Devi which could have been caused by sharp-edged weapon. The medical opinion as elicited from Dr. Arvind, whilst in the court, is that the said injuries were likely to have been caused by sharp-edged weapon like kulhari, that is an axe. The sharp edge of farsa is similar to the sharp edge of axe, and therefore, the learned counsel for the appellants is right in submitting that if at all there was assault on Santra Devi, probability lies more on the side of the two incised wounds on the person of Santra Devi having been caused by farsa which is alleged to have been weilded by accused Balbir. In the facts and circumstances of the case, more so in the absence of medical opinion having been solicited either at the stage of investigation or during the trial that the two injuries on the person of Santra Devi could have been caused by ballams seized from accused Dinesh and Dayanand, it is difficult to hold that these injuries can be attributed to the two accused appellants before us. This is over and above the fact that according to Jagdish (PW6) ballam was used ‘in thrust way’ in which case there should have been a punctured or penetrating wound rather than an incised wound. The conclusion which follows from the absence of the testimony of Jagdish being corroborated by medical evidence is that either he did not witness the occurrence or the occurrence did not take place in the manner as narrated by this witness. In any case, according to his own statement he was standing at a distance of about 100 yards from the place of incident and it is unlikely that he could have seen the minute details of the alleged attack by the three accused, especially having regard to the fact that the time of the incident was at 5.30 p.m. in the month of October which will be almost the evening time when winter was setting in. There is no site plan available on record from which the court could have had an idea of distances between the place of occurrence, the place where Jagdish and Ram Narain were standing and the situation of the houses of Rajbir and the accused persons and the field – the incident whereat was the cause of the subsequent occurrence.
13. We are surprised a little to note the manner in which the inconsistency between the eyewitness account and the medical evidence has been dealt with by the trial court and the High Court. The trial court, vide para 33, stated :-
‘It is possible that after receiving farsa blows from accused Balbir on her head, Santra might have fallen down on the ground and the ballam aimed by accused Dinesh and Dayanand might not have landed on her head. Thus, it cannot be said there was inconsistency between the ocular evidence and the medical evidence.’
14. Similar criticism mounted by the defence on the prosecution case before the High Court was dealt with and disposed of by the division bench by accepting the submission made on behalf of the state, and relying on a passage from Modi’s medical jurisprudence, as under :-
“Incised looking wound-occasionally, on wounds produced by a blunt weapon or by a fall, the skin splits and may look like incised wounds when inflicted on tense structures covering the bones, such as the scalp, eyebrow, iliac crest, shin, perineum etc., or by a fall on the knee or elbow when the limb is flexed.
We agree with the contention of the learned deputy advocate general. In this case before us, this mistake could have occurred as the scalp is a hard surface and when blows were given with Jelly dangwise, lacerated wounds were caused and the doctor has probably mistaken them to be incised wounds.”
15. Thus, the High Court tried to make out a new case with reference to an unrelated passage from medical jurisprudence, in an apparent bid to explain away the discrepancy between the ocular and medical evidence.
16. The fact that Santra Devi was assaulted on the date of occurrence and sustained serious injuries resulting in her death cannot be doubted. However, the question is one of fixing the responsibility for the injuries caused to her. Looking at the number and nature of injuries and the prosecution version, it appears to be highly improbable that the number of accused armed with sharp edged deadly weapons like farsa and ballams was three and all of them had assaulted Santra Devi. The prosecution cases appears to be highly exaggerated and embellished. If the prosecution has tried to implicate three persons – the father and the two sons, while only one or two of them might have assaulted the injured Santra Devi and positive role is assigned to the three accused persons which is not corroborated by medical evidence, the court is left guessing about the exact number of assailants and the manner in which they may have assaulted the injured. The present one is the case where a little grain has been mixed up with so much of chaff that it is almost not possible to separate the grain. Though a court of facts is obliged to make an effort at finding out the truth by separating it from the falsehood, but, on finding it not possible to do so, it is not permissible for the court to spin out altogether a new case, different from the one alleged by the prosecution, and to convict the accused.
17. For the foregoing reasons, we do not deem it safe to place reliance on the testimony of Rajbir, PW8 and Jagdish, PW6. In any case, we are satisfied that there is a reasonable doubt about these two accused appellants having participated in the incident and in the manner as alleged by the prosecution, the benefit whereof must go to them.
18. The appeal is allowed. The conviction of the accused appellants under section 302/34 IPC as recorded by the trial court and maintained by the High Court is set aside. The accused appellants shall be released forthwith if not required in connection with any other offence.
1. One Balbir Singh and his two sons Dinesh and Dayanand, were tried on charges under section 302 read with section 34 IPC. The accused Balbir Singh expired during the pendency of the trial in the sessions court. Accused Dinesh and Dayanand were found guilty by the trial court of the offence charged and each was sentenced to undergo imprisonment for life and a fine of Rs. 1000/- and in default of payment thereof to undergo further imprisonment for a period of two months. The two accused preferred an appeal before the High Court which has been dismissed. Both the accused persons have filed this appeal by special leave, feeling aggrieved by their conviction and sentence awarded by the trial court and maintained by the High Court.
2. The appellants are residents of village known as Choki no. 1. Santra Devi, the victim who died in the occurrence, was the wife of Beer Singh. Rajbir PW8 who lodged the FIR of the offence is her son. He was aged about 16 years at the time of the incident. The prosecution case as set out in the FIR is that on 13.10.93 Rajbir saw buffalo of late Balbir destroying crops in his field. Some altercation or verbal exchange appears to have taken place at that point of time between Rajbir and accused Dinesh. Dinesh dealt a blow on Rajbir with the chain which is used for tying buffalo. Thereafter, both of them left the field. Rajbir went to his home and complained to his mother Santra Devi. At about 5.00 or 5.30 p.m. Rajbir accompanied by his mother was going to his field. On the way, when they were crossing the plot of one Ram Mohan, all the three accused persons came there. Balbir was armed with farsa. Dinesh and Dayanand were armed with ballams. They were hurling abuses. They opened an assault on Santra Devi. Rajbir raised an alarm which attracted Jagdish, his maternal uncle and Ram Narain. On seeing them, the three accused persons fled away. Santra Devi fell down having sustained 4 or 5 serious injuries on her head. She was immediately taken to a hospital at Rewari. Santra Devi was unconscious.
3. The doctor at Rewari hospital, looking at the serious condition of injured Santra Devi, referred her to Safdarjang Hospital, Delhi where she was admitted indoors sometime in the night. It appears that family members of Santra Devi were busy looking after her as her condition was serious and therefore they could not afford to go to police station for lodging FIR. However, Laxmi Singh, ASI of P.S. Jatusana met Rajbir at the bus stop of village Palhawas. The ASI was there investigating some other offence of theft and house-breaking relating to his police station. He recorded the statement of Rajbir which was forwarded to the police station and registered as first information report of the incident. Santra Devi died sometime in the evening of 14.10.93. Her statement could not be recorded as she remained unconscious. On 15.10.93 postmortem on her dead body was performed by Dr. Arvind Thergbonkar, PW1 who found Santra Devi to have sustained the following injuries on her person:-
1. Abrasion on left side of cheek measuring 10 cms. x 6 cms. irregular in shape.
2. An incised wound 6 cms. x 1 cm. x bone deep on right side of front of parietal region, slightly curved in nature. The anterior end is 7 cms. behind a right orbit, 3 cms. lateral to mid-line on left side, 22 cms. anterior to back of hairline.
3. An incised wound on left parietal region, 4 cms. long 0.5 cm. broad x bone deep. It is situated 3 cms. lateral and left to mid-line and 20 cms. front of posteriors hairline.
4. Abrasion on right forearm measuring 4 cms. x 1 cm. irregular in shape.
4. On internal examination, a depressed comminuted fracture on left parietal region extending to both sides of frontal region interiorly and fracture line also extending to left parietal bone and left temporal region were found. There were other internal damages in the parietal region. The brain was soft and swollen. In the opinion of Dr. Arvind, all the injuries were ante-mortem in nature, the cause of death was cranio cerebral damage which could have been caused due to sharp-edged weapon like an axe. Injuries 2 and 3 were individually and collectively sufficient in ordinary course of nature to cause death. Injuries nos. 1 and 4 could have been caused due to fall on rough surface. During cross examination Dr. Arvind further opined that the possibility of comminuted fracture from right to left having been caused by a single blow could not be ruled out.
5. The three accused persons were arrested on 23.10.93. On the statements given by the three accused persons whilst in custody a farsa and two ballams were recovered. Forensic science laboratory confirmed presence of blood on farsa. Nothing such could be detected on ballams.
6. The prosecution case rests on the ocular evidence of Rajbir PW8 and Jagdish, PW6. Ram Narain who was admittedly present with Jagdish and had witnessed the incident in the same manner in which Jagdish PW6 did, was not examined at the trial and was given up by the prosecution on the ground that he was won over by the accused and was not willing to speak the truth. Jagdish, PW6 is maternal uncle of Rajbir, PW8, that is, brother of the deceased. Ram Narain, the other eyewitness, not examined, is Santra Devi’s sister’s husband. The statements of the two witnesses – Rajbir and Jagdish, have been relied upon by the trial court as also by the High Court for the purpose of recording finding of guilt against the accused persons.
7. Shri U.R. Lalit, learned senior counsel for the appellants, assisted by Shri K.B. Rohtagi, Advocate, vehemently attacked the testimony of both the eyewitnesses and submitted that the testimony of Rajbir is too vague to draw any inference of guilt against the accused persons, while it is rightly doubtful if Jagdish, PW6 was at all present in the village when the occurrence took place and was an eyewitness. It is also submitted by him that the investigator as also the conduct of the prosecution at the trial, suffers from certain serious infirmities, the benefit whereof should not be denied to the accused persons. It was also submitted by him that the trial court and the High Court have spun out a case for the prosecution which is much in departure from the prosecution story and deserves to be discarded for this reason.
8. In the light of the submission so made we would scrutinise the testimony of the two eye-witnesses Rajbir, PW8 stated that earlier on the same day Balbir’s buffalo had destroyed the crop in his field and he and his mother were going to the field to make a complaint to Balbir where they met Dinesh. Rajbir asked Dinesh to take out buffalo from his field whereupon Dinesh assaulted him with the chain. Rajbir then ran towards his house. On the way, he and Santra Devi were surrounded by Balbir, Dinesh and Dayanand respectively armed with farsa and ballams. They started hurling abuses and assaulted Santra Devi. Santra Devi sustained injuries and fell down and became semi-conscious. Her cries attracted Jagdish and others who were standing at the bus stop. Jagdish and Rajbir lifted Santra Devi and brought her to the house. Thereafter she was taken to the hospital. During cross examination he was confronted with his police statement wherein he has not stated that he and his mother were going to lodge a complaint to Balbir when the occurrence took place. The assault with chain by accused Dinesh did not cause any visible injury on the person of Rajbir. He had intervened to save her mother from the assault by the accused persons but he did not succeed. All the three accused had tried to assault Rajbir also but he did not sustain any injury. About 10 to 20 persons of the village gathered there but no one tried to intervene or apprehend any of the accused persons while they were escaping from the scene of occurrence. It is pointed out by the learned counsel for the accused appellants that there are same notable features of the testimony of Rajbir in so far as the assault on Santra Devi is concerned. The witness does not specify as to which of the accused’s blow with his weapon landed on which part of the body of Santra Devi. His statement is a general omnibus statement. The total description of the assault as given by Rajbir is in one sentence – “when we reached near the house of (plot of) Ram Mehar, Balbir son of Ramsarup armed with a farsa, Dinesh son of Balbir armed with a ballam, and Dayanand son of Balbir armed with a ballam came towards us while abusing and started beating my mother Santra Devi.” However, the fact remains that according to him, all the three accused persons participated in the assault on Santra Devi, meaning thereby that the injured must have sustained injuries by farsa and ballam and if all the three accused dealt blows then a minimum of three such injuries must have been sustained by Santra Devi.
9. According to Jagdish PW6, he is a resident of village Pahari (Rewari). On the date of occurrence, he had come to this village at about 11.00 a.m. The purpose of his visit was to take Ram Narain’s daughter to stay with him and to cook food for him as his wife, having met with an accident, was bed ridden. However, Ram Narain’s daughter was not there and therefore he was returning to his village. He had come to bus stop and Ram Narain had also come to bus stop to see him off. The bus stop is at a distance of about 100 yards from the place of occurrence. He heard the voice of Rajbir shouting ‘meri maan ko bachao’ (save my mother). On hearing such cries he and Ram Narain both rushed to the scene of occurrence and saw Balbir armed with farsa and Dayanand and Dinesh armed with ballams, running towards their house, having inflicted injuries on Santra Devi. However, the witness went on to say that from a distance, within his viewing. he had seen “accused giving farsa blow to Santra, Dinesh giving ballam blow in thrust way bold on the head of Santra Devi, Dayanand also gave a ballam blow which hit at Santra Devi on her head”.
10. In the submission of learned counsel for the appellants so far as the assault on Santra Devi is concerned, according to Jagdish, accused Balbir did give a blow landing on Santra Devi without specifying the part of the body where the blow had landed. Accused Dinesh gave ballam blow in thrust way hitting on the head of Santra Devi. The accused Dayanand also gave a ballam blow which landed on the head of Santra Devi. According to such narration of the incident, if all the 3 accused persons had participated in the incident, at least three injuries, all by sharp-edged weapons like farsa and ballams, must have been sustained by the injured.
11. We have perused the seizure memo prepared by the investigating officer whereby the three weapons of offence were seized. So far as farsa seized from accused Balbir is concerned, we need not make any comment thereon inasmuch as farsa is a generally known weapon and its structure is a matter of common knowledge. However, so far as ballams are concerned they, have been described as ‘jelli ballams’ in the seizure memos as also in the evidence. Their description, specially of the sharp edge head is not given in the seizure memos. It is not clear if the head was a round sharp edge or a flat double-edge. On seizure, the weapons were not referred to Dr. Arvind for soliciting opinion if the injuries as sustained by Santra Devi could have been caused by the weapons which were seized as weapons of offence. When Dr. Arvind appeared in the witness box, then also, neither the prosecutor (whose primary duty it was) nor the learned judge presiding over the trial, took care to show the weapons to him and solicit opinion of Dr. Arvind whether the injuries suffered by Santra Devi could have been caused by any of the weapons exhibited in the court.
12. The perusal of the injuries sustained by Santra Devi and as described by Dr. Arvind shows that on the parietal region, there are only 2 injuries – both incised wounds. The other two injuries are abrasions – one, on left side of cheek, and the other, on right forearm. Both are irregular in shape. The medical opinion, as expressed before the trial court, is that in so far as these two injuries are concerned they were more likely to have been caused by fall on rough surface. Thus, we are left with only 2 injuries on the person of Santra Devi which could have been caused by sharp-edged weapon. The medical opinion as elicited from Dr. Arvind, whilst in the court, is that the said injuries were likely to have been caused by sharp-edged weapon like kulhari, that is an axe. The sharp edge of farsa is similar to the sharp edge of axe, and therefore, the learned counsel for the appellants is right in submitting that if at all there was assault on Santra Devi, probability lies more on the side of the two incised wounds on the person of Santra Devi having been caused by farsa which is alleged to have been weilded by accused Balbir. In the facts and circumstances of the case, more so in the absence of medical opinion having been solicited either at the stage of investigation or during the trial that the two injuries on the person of Santra Devi could have been caused by ballams seized from accused Dinesh and Dayanand, it is difficult to hold that these injuries can be attributed to the two accused appellants before us. This is over and above the fact that according to Jagdish (PW6) ballam was used ‘in thrust way’ in which case there should have been a punctured or penetrating wound rather than an incised wound. The conclusion which follows from the absence of the testimony of Jagdish being corroborated by medical evidence is that either he did not witness the occurrence or the occurrence did not take place in the manner as narrated by this witness. In any case, according to his own statement he was standing at a distance of about 100 yards from the place of incident and it is unlikely that he could have seen the minute details of the alleged attack by the three accused, especially having regard to the fact that the time of the incident was at 5.30 p.m. in the month of October which will be almost the evening time when winter was setting in. There is no site plan available on record from which the court could have had an idea of distances between the place of occurrence, the place where Jagdish and Ram Narain were standing and the situation of the houses of Rajbir and the accused persons and the field – the incident whereat was the cause of the subsequent occurrence.
13. We are surprised a little to note the manner in which the inconsistency between the eyewitness account and the medical evidence has been dealt with by the trial court and the High Court. The trial court, vide para 33, stated :-
‘It is possible that after receiving farsa blows from accused Balbir on her head, Santra might have fallen down on the ground and the ballam aimed by accused Dinesh and Dayanand might not have landed on her head. Thus, it cannot be said there was inconsistency between the ocular evidence and the medical evidence.’
14. Similar criticism mounted by the defence on the prosecution case before the High Court was dealt with and disposed of by the division bench by accepting the submission made on behalf of the state, and relying on a passage from Modi’s medical jurisprudence, as under :-
“Incised looking wound-occasionally, on wounds produced by a blunt weapon or by a fall, the skin splits and may look like incised wounds when inflicted on tense structures covering the bones, such as the scalp, eyebrow, iliac crest, shin, perineum etc., or by a fall on the knee or elbow when the limb is flexed.
We agree with the contention of the learned deputy advocate general. In this case before us, this mistake could have occurred as the scalp is a hard surface and when blows were given with Jelly dangwise, lacerated wounds were caused and the doctor has probably mistaken them to be incised wounds.”
15. Thus, the High Court tried to make out a new case with reference to an unrelated passage from medical jurisprudence, in an apparent bid to explain away the discrepancy between the ocular and medical evidence.
16. The fact that Santra Devi was assaulted on the date of occurrence and sustained serious injuries resulting in her death cannot be doubted. However, the question is one of fixing the responsibility for the injuries caused to her. Looking at the number and nature of injuries and the prosecution version, it appears to be highly improbable that the number of accused armed with sharp edged deadly weapons like farsa and ballams was three and all of them had assaulted Santra Devi. The prosecution cases appears to be highly exaggerated and embellished. If the prosecution has tried to implicate three persons – the father and the two sons, while only one or two of them might have assaulted the injured Santra Devi and positive role is assigned to the three accused persons which is not corroborated by medical evidence, the court is left guessing about the exact number of assailants and the manner in which they may have assaulted the injured. The present one is the case where a little grain has been mixed up with so much of chaff that it is almost not possible to separate the grain. Though a court of facts is obliged to make an effort at finding out the truth by separating it from the falsehood, but, on finding it not possible to do so, it is not permissible for the court to spin out altogether a new case, different from the one alleged by the prosecution, and to convict the accused.
17. For the foregoing reasons, we do not deem it safe to place reliance on the testimony of Rajbir, PW8 and Jagdish, PW6. In any case, we are satisfied that there is a reasonable doubt about these two accused appellants having participated in the incident and in the manner as alleged by the prosecution, the benefit whereof must go to them.
18. The appeal is allowed. The conviction of the accused appellants under section 302/34 IPC as recorded by the trial court and maintained by the High Court is set aside. The accused appellants shall be released forthwith if not required in connection with any other offence.
