of U.P. Vs. Premi & Ors  Insc 109
(20 February 2003)
Sabharwal & H.K. Sema Y.K. Sabharwal, J.
1 and 2 in this appeal who are brothers were convicted by the Sessions Court
for the offence under Sections 452, 307 read with Section 34 and Section 302
read with Section 34 IPC. Their father, respondent no.3, was also convicted for
offence under Sections 452, 307 and Section 302 read with Section 34 IPC. Their
conviction and consequently the sentence that had been imposed on them by the
Sessions Court was set aside in appeal by the High Court in terms of the
impugned judgment. The State is in appeal to this Court on grant of leave.
During the pendency of the appeal, respondent no.3, Devi Das died. The appeal
thus abates against him.
prosecution case in brief is that respondents 1 and 2, their father and another
person entered the house of Raghubir (PW3) at about midnight of 15th-16th
January, 1977 while he
was sleeping with his wife and children. After removing the quilt, the respondents
held fast PW3 and he was hit on the head with the butt of the country-made
pistol. When Budh Wati @ Ved Wati, wife of PW3, came to save him, she was also
assaulted with butt of the pistol. On hearing their cries, Mathuri (PW4) and Balwant,
living in the same compound, came whereupon the accused ran away. PW3 and his
wife were assaulted because PW3 was cited as a prosecution witness against the
respondents and their father in the case of murder of one Rajinder son of Prem Sahai
where they were accused. The place of occurrence is at a distance of about 9
kilometer from the Police Station. The FIR was recorded on the statement of PW3
at 8.30 a.m. Budh Wati succumbed to her injuries
at about 9.00 p.m. on 16th January.
Sessions Court, on appreciation of the evidence of PW3, PW4, Police officials
and the medical evidence, convicted the three accused. The fourth person was
not identified and, thus, could not be apprehended.
reversing the judgment of the Sessions Court, the factors that have been taken
into consideration and weighed with the High Court are :
Absence of proof of light;
Improvements and contradictions in the testimony of prosecution witnesses; and
Difference between the ocular and medical evidence regarding injuries.
took place around midnight. The reasons for the High Court's
coming to the conclusion that there was no source of light available to the
witness to recognize the assailants are:
Non-mention of the presence of electric bulb in the FIR;
Admission of PW3 that electric connection was not available in his house before
Fact of source of light being not mentioned in the statement of PW3 recorded
during investigation under Section 161 of the Criminal Procedure Code.
S.I. S.P. Singh, inspected the place of occurrence on 16th January and prepared
a site plan which mentions one electric bulb in the Kothri of Raghubir, one in
his courtyard and another in the Kothri of PW4. These electric points have been
shown in site plan (Exhibit Ka-10). The witness was hardly challenged. The
existence of the electric bulbs was also not seriously challenged in the
cross-examination of other witnesses. The omission to mention about light in
the FIR or in the statement of PW3 recorded by the police under Section 161 Cr.P.C.
was wholly inconsequential. PW3 had made a categorical statement of having
recognized the assailants. There is also no admission in the statement of PW3
about the non-availability of the electric connection. The finding as also the
reasoning is wholly contrary to evidence and established facts. The High Court
has held that the statement of PW3 was recorded on 9th May, 1979 and he admitted that the electric connection was made
available about one year ago and from this, the admission of PW3 was inferred
about the non-availability of the electric connection. The testimony of PW3
clearly shows that when he stated that the electric connection was made
available less than a year ago he was referring to the date of the incident and
not the date when his statement was recorded. After deposing about the time
when the electric connection was installed, PW3 further stated that he told the
Police about the electric light being on. By no stretch of imagination anyone
can come to the conclusion that PW3 admitted that when occurrence took place,
there was no electric connection. The mention of the electric bulbs at various
places, as earlier noticed, was also made in the site plan prepared by the
Police. In this view, the High Court committed grave illegality in coming to
the conclusion that in absence of light, the assailants could not be
reaching the conclusion that there are improvements and contradictions in the
statement of the prosecution witnesses, the High Court has completely misread
the FIR and has come to the conclusion that the factum of the respondents
having caught hold of PW3 has not been mentioned in the FIR. In fact, FIR
specifically states that the respondents caught hold of PW3. The High Court
seems to have made too much of the minor contradictions about the non-mention
of the dandas in the FIR. The so called contradictions and improvements,
according to the High Court, are the result of darkness in view of the absence
of the electric connection, a finding which is not at all sustainable as
noticed above. The further finding of the High Court that testimony of PW3 is
uncorroborated is again unsustainable. PW4 was living in the same compound. His
name is mentioned in the FIR. He is deposed to have seen the respondents coming
out of the house of PW3. PW4 is next door neighbour of PW3. He is a natural
witness of the occurrence. A well reasoned judgment of the Sessions Court on
critical analysis of the evidence was reversed by the High Court on
consideration of improvements and contradictions which are minor and natural
and rather go to show the truthfulness of the evidence.
to the third factor, namely, difference between medical and ocular evidence,
the High Court has held that the injuries were caused by the sharp edged
weapons and, therefrom, concluded that the ocular testimony of PW3 was
contradicted by medical evidence and, thus, labelled PW3 as an unreliable
Dr. Arjun Kumar, on medical examination on 16th January at about 10.05 a.m. found the following injuries on PW3:
wound over right frontal region of scalp, 9 cms above root of nose, size- 6 cms
x 1 cm x bone deep, fracture of the underlying bone is visible, patient
complained of bleeding from both nostrils, clotted blood was present in both
sides of the nose, edges of the wound were clean cut, wound is gaping, oblique
in direction as shown in the figure." On medical examination of Budh Wati
at about 10.25 a.m. on the same date PW8 found the
following injuries :
Incised wound over left occipital region of scalp, 8 cm above and behind left
ear, size 5 cms x 1 cm x bone deep, edges were clean cut, wounds were gaping,
suspected fracture of underlying bone, x-ray was advised, injury was kept under
observation, the injury appeared to have been inflicted with a sharp-edged
weapon, direction was forward backward.
Abrasion over right temple, 1 cm outer from the outer angle of the right eye,
size 3 cms x 2 cms blackish colour, it was a simple injury, must have been
caused with a blunt weapon..
Abrasion over right side of the forehead, 2 cms above the right eyebrow, size 2
cms x 1 cm, blackish colour, simple, caused by a blunt object.
was in her sense, but was not able to speak. Pulse rate was 72 per minute,
respiration-24 per minute, eye lids were normal, and were reacting against
light, all the injuries were inflicted within 24 hours." PW3 and his wife
were sent to the District Hospital, Budaun. Later she died at 9 p.m. on the same date. Dr. B.K. Srivastava (PW1) conducted the
autopsy and as per postmortem report prepared by him found following injuries
on the deceased :
Lacerated wound 6 cms x 1 cm x 1/2 cm on the left side of the head, 9 cms above
the left eye.
Contusion 3 cms x 1/2 cm on the right side of forehead, 3 cms above the right
Contusion 3 cms x 11/2 cms on the right side, 3 cms at the tragus from the
Clotted blood present in the right ear.
Abrasion with contusion, 10 cms x 3 cms on the upper arm, 19 cms above the
right elbow joint.
Abrasion 2 cms x 1/2 cm on the inner aspect of little finger of left hand.
internal examination, he found
Fracture present 10 cms long on the left perital bone, extending upto occiptal
Fracture 5 cms long, on the left side of the perital bone upto Lamsdard puture.
Fracture 2.1/2 cms long, obliquely, between injuries 1 and 2 on perital bone.
Base of skull on the right side was broken. Clotted blood was found below the
skin of the scalp."
medical evidence produced by the prosecution comprises of the aforesaid two
doctors PW1 and PW8 besides Dr. S.C. Sharma (PW9) who had examined injured PW3
and had also deposed on the basis of x-ray reports and other documents. The
High Court for the view that the injury was inflicted by a sharp edged weapon
has placed strong reliance on the testimony of PW8. Learned counsel for the
respondents has also placed strong reliance on the testimony of the said
doctor. Before considering this contention and examining the testimony of PW8,
it would be useful to notice as to what has been deposed by PW1 and PW9. It is
also to be kept in mind that the real question is whether the testimony of PW8
is such which if accepted would either belie the ocular testimony of PW3 or create
reasonable doubt on creditability of PW3 the said testimony can be trusted and
relied upon despite the deposition of PW8.
to Dr. Srivastava (PW1) who conducted the postmortem, wife of PW3 died due to
fracture in the bone of skull, perital bone and occipital bone and bleeding and
shock. Internal fractures 1 to 4 were the resultant effects of injuries 1, 2
and 3 and these injuries, according to the doctor, must have been caused with a
blunt weapon. His categorical testimony is that none of these injuries was
incised wound caused with a sharp weapon. He has further deposed that it
becomes difficult to say whether a wound on a bony part is lacerated or incised
(Dr. S.C. Sharma) who, at the relevant time, was a senior surgeon at Budaun Hospital
had examined PW3 who was treated and discharged a month later on 16th February,
1977. He also examined the x-ray of the head of PW3 which showed the fracture
of the frontal bone. According to Dr. Sharma, depressed fractures are generally
caused with blunt weapons. He further deposed that such an injury is possible
with a blunt object like the butt of the pistol. In cross-examination, he
stated that the weapon may be blunt or sharp edged, its heavy blow can cause
the fracture and depressed fracture will be caused when there is a full-blooded
blow on the bone. Now turning to the evidence of Dr. Arjun Kumar (PW8) on which
strong reliance has been placed, in his cross-examination, he stated that
injury No.1 is clean-cut wound which he wrote after examining with a magnifying
lens. He, therefore, deposed that the injuries were caused with a sharp edged
weapon and not with a blunt object. It is on this part of the evidence of PW8
that strong reliance has been placed by Mr. Sinha, learned counsel for the respondents.
However, PW8 has further deposed that if the butt had a projecting tin-piece,
it could cause such an injury and that the tin piece must have been fixed over
so much part of the width of butt as could cut upto the bone and that weapon
may be sharp-edged or blunt, its thrust can cause fracture. He has further
deposed that injury with a blunt object sometimes appears to be incised wound.
The testimony of PW8 that the injuries were caused with sharp-edged weapon and
not with a blunt weapon, is in the nature of the opinion of one of the doctors.
In any case, testimony of PW8 cannot be read in isolation. His evidence is to
be read as a whole and when so read it becomes clear that the injuries of the
kind inflicted on PW3 and the deceased could be caused with the butt of the
revolver. It has also to be borne in mind that generally injury on head is
caused by a blunt weapon.
counsel for the respondents has placed reliance on Modi's Medical Jurisprudence
and Toxicology (22nd Edition) in support of the contention that the clean cut
edges of the wound and the wound being gaping, as deposed by PW8, shows that it
was an incised wound. According to Modi, the edges of a wound made by a heavy
cutting weapon, such as an axe, hatchet or shovel, may not be as smooth as
those of a wound caused by a light cutting weapon, such as a knife, razor etc.
and may show signs of contusion. However, while dealing with incised looking
wound, according to Modi, 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 etc. Mr. Sinha,
however, submits that if that had been so, the edges of the wound would have
been irregular and hair bulbs would have been found crushed when the injuries
were examined by magnifying glass by PW8. The learned counsel, however,
overlooks the fact that the main evidence of all the doctors is that the
injuries in question could be inflicted with the butt of the revolver and it
would look like incised wound having been inflicted with a sharp-edged weapon.
Besides the medical evidence, what is also to be kept in view is that in the
FIR recorded on the oral statement of PW3 immediately after the occurrence, it
was specifically stated that the injuries were caused by the butt of the
country made pistol. The medical evidence and the ocular evidence is wholly
consistent as was rightly held by the Court of Sessions. We are conscious of
limitations while dealing with an appeal against a judgment of acquittal.
Having, however, found that miscarriage of justice has resulted by an entirely
faulty and erroneous appreciation of evidence by the High Court, it becomes our
duty to interfere in the matter. From the evidence, the only view possible is
one taken by the Sessions Court.
facts and circumstances of the case, it is also not possible to accept the
contention that the respondents had no intention to kill and, therefore, their
conviction deserves to be altered to be one falling under Section 304 IPC. As
already noticed, at the dead of the night the respondents and their father went
to the house of PW3 with a country made pistol and with force inflicted such
injuries on head which resulted in death of wife of PW3. The mere fact that
only a single blow was inflicted on the head by itself is not enough to alter
the conviction from Section 302 to Section 304 IPC.
the aforesaid reasons, we are unable to sustain the judgment of the High Court.
The appeal is accordingly allowed and setting aside the impugned judgment of
the High Court, the conviction and sentence imposed on respondents 1 and 2 by
the Additional District & Sessions Judge, Budaun is restored. The bail
bonds of respondents 1 and 2 are cancelled. They shall be taken into custody
forthwith to serve the remaining part of the sentence.