Jai Karan And Anothers vs State Of U.P. on 15 May, 2018

[Cites 35, Cited by 1]

Allahabad High Court

Jai Karan And Anothers vs State Of U.P. on 15 May, 2018

Bench: Sunita Agarwal





HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reportable
 
Reserved on 8.5.2018
 
Delivered on 15.5.2018
 
Case :- CRIMINAL APPEAL No. - 431 of 1990
 
Appellant :- Jaikaran And Another
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- K.P. Shukla
 
Counsel for Respondent :- A.G.A.
 

 
Hon'ble Mrs. Sunita Agarwal,J.

Hon'ble J.J. Munir,J.

(Delivered by Hon'ble Mrs. Sunita Agarwal, J.) Heard Sri K.P. Shukla, learned counsel for the appellant no. 2 Prema and the learned A.G.A.

The present appeal is directed against a judgment and order of Sri Pitamber Singh, the then Additional Sessions Judge-III, Hamirpur dated 03.03.1990 in Sessions Trial No.185 of 1988 (State Vs. Jaikar and others) convicting the appellants Jaikaran and Prema for the offences punishable under Section 302 and 307 IPC, both read with Section 34 IPC and sentencing them to suffer imprisonment for life and five years' rigorous imprisonment, respectively. Both the sentences have been directed to run concurrently.

The prosecution case as unfolded in the written report handed over by Lakhan Singh (P.W.-1) is that on March 28th, 1988 at about 2:00 PM, two sons of Pahalwan Singh namely Shailendra Singh and Juggan Singh resident of village-Kahra, Police Station-Kabrai, Hamirpur were in their house when one Vinay Kumar son of Munna Tripathi came to call them to play outside and took them to the 'Well' situated near their house. Prema and Jaikaran, the accused appellants sons of Bhagwandin resident of the same village were present near the 'Well' carrying 'Ballam'. They took the children near the boundaries of the 'Well' on the pretext of showing snake inside it and Jaikaran on the asking of Prema pushed both the children into the 'Well' by holding their hands. Shailendra Singh, elder son of Pahalwan Singh was taken out dead from the 'Well' whereas the younger one Juggan Singh was in unconscious state. The first informant accompanied by Juggan Singh (survivor) and neighbours Ran Vijay Singh and Smt. Ramrati wife of Natthu Singh had gone to the police station to lodge the report. As per the report, the incident was witnessed by Dragpal Singh son of Raja Bhaiya Singh and Natthu Dhobi son of Durga Dhobi both residents of village Kahra. Further, at about 2:30 PM, the accused/appellants were seen running towards the village by Chunubad Kumhar son of Pancha Kumhar. The motive for committing the crime has been described in the report as that about one month back, a theft had occurred in the house of Pahalwan Singh whereupon he confronted the accused Jaikaran and his brothers with his suspicion. Consequently, a 'Panchayat' was held in the village wherein both the sides took oath of their children to prove them being truthful. In order to prove that the oath taken by Pahalwan Singh was false, his both children have been pushed into the 'Well' with an intention to cause their death in a planned manner. It was lastly mentioned that the accused had committed crime in a conspiracy with their brother Sobaran @ Sheo Baran out of old animosity between the families. The first information report was lodged on 28.3.1988 at about 7:00 PM on the written report scribed by Gulab Singh son of Kallu Singh on the dictation of the first informant Lakhan Singh. The first informant Lakhan Singh son of Sri Natthu Singh is brother-in-law (wife's brother) of Pahalwan Singh.

The First Information Report aforesaid was registered in the General Diary vide G.D. Entry No.22 at 7 o' clock in the evening hours on 28.03.1988. The written information is Ex. Ka-1, whereas extract of the G.D. Entry of its registration is Ex. Ka-2. The injured Juggan Singh was medically examined for his injuries by Dr. R.B. Singh at the Primary Health Centre, Kabrai on 28.03.1988 at 10.45 in the night hours. The medico-legal report of Juggan Singh is on record as Ex. Ka-12.

The investigation was entrusted to S.I. R.V. Sharma, who recorded the statements of Juggan Singh, the first informant Lakhan Singh, Dragpal Singh and Raja Bhaiya Singh, all on 28.03.1988. Thereafter, on 29.03.1988 inquest was done on the body of deceased Shailendra Singh and a inquest report was drawn up that is marked as Ex. Ka-5. The dead body was, thereafter, forwarded for autopsy. The Investigating Officer inspected the place of occurrence and drew up the site plan that is on record as Ex. Ka-6 and there he proceeded to examine witnesses Sukhdev, Chandrika, Chunubad and Pahalwan, whose statements were duly recorded.

Dr. N.K. Singhal of Purush Chikitsalaya undertook autopsy of the deceased Shailendra Singh on 29.03.1988 at 2.00 PM. The relevant findings in the postmortem report have been detailed in a later part of this judgment extracted copiously from the document.

It does need mention here that in the opinion of the Doctor, the cause of death was asphyxia as a result of drowning. The autopsy is on record as Ex. Ka-11.

The Investigating officer on 30.03.1988 recorded the statement of Ramrati, wife of Natthu Singh. On 31.01.1988, the accused, that includes the appellants, were arrested. Thereafter, statements of the accused and that of the Head Moharrir Vijay Singh Sengal, were recorded by the Investigating Officer. The Investigating Officer after completing the investigation submitted a charge sheet dated 06.05.1988 in court, which is on record as Ex. Ka-7. In due course the case was committed to the sessions and charges were framed on 13.01.1989 jointly against Jaikaran and Prema, who were charged under Section 302 read with Section 34 IPC and Section 307 read with Section 34 IPC, whereas a separate charge was framed against co-accused Sobaran @ Sheo Baran for an offence punishable under Section 120B IPC. The accused denied the charge and claimed trial.

The prosecution has examined ten witnesses. According to the prosecution, the incident was seen by two witnesses namely P.W.-1 & P.W.-2.

(i) Lakhan Singh, P.W.-1, the first informant (uncle of the deceased victim);

(ii) Dragpal Singh, P.W.-2, a neighbour, an eyewitness;

(iii) Pahalwan Singh, P.W.-4 (a different person with the same name as that of the father of the victims) is witness of the inquest;

(iv) P.W.-5, Jogendra Singh (survivor), younger of two children;

(v) P.W.-10, Gulab Singh, scribe of the first information report;

(vi) P.W.-6, Vijay Singh Sengar, the police head constable who had registered the first information report, prepared 'chik report' and entered it in G.D;

(vii) P.W.-7, R.V. Sharma, the police Sub-Inspector is the Investigating Officer (I.O.) who was posted as Station House Officer and was present in the concerned police station at the time of registration of the First Information Report;

(viii) P.W.-8, Dr. K.N. Singhal had performed the autopsy of the deceased Shailendra Singh son of Pahalwan Singh;

(ix) P.W.-9 Dr. R.V. Singh had examined another victim Juggan Singh son of Pahalwan Singh and prepared injury report (Exhibit -Ka12);

At the conclusion of the evidence for the prosecution, statements of the accused under Section 313 Cr.P.C. were recorded, where the accused repudiated the entire prosecution case and in response to various questions denied their involvement in the crime in words variously expressed.

The accused, however, did not enter defence.

The instant appeal has been filed by two accused namely Jaikaran and Prema. By the order dated 27.1.2018, the report of the Chief Judicial Magistrate, Hamirpur regarding death of appellant no. 1 namely Jaikaran was accepted and for appellant no. 2 Prema the appeal has been proceeded for hearing.

Heard learned counsel on behalf of appellant no. 2 namely Prema and the learned A.G.A.

Learned counsel for the appellant Prema pointing out discrepancies in the prosecution case submitted that the entire prosecution case is a concocted story. The First Information Report is ante-time as the details of the First Information Report had not been entered in the inquest report. There is no G.D. entry of the inquest report. The date and time of the inquest is 29.3.1988 at about 7:00 AM. However, it does not discloses the name of the accused, the manner in which the incident occurred such as who pushed the victims into the 'Well'. The distance of the police station mentioned in the inquest and F.I.R. is different. The inquest was prepared after 12(twelve) hours of registration of the first information report when the concerned police station was only at a distance of approximately 10 kms. from the scene of incident. This fact proves that the F.I.R. and inquest were prepared separately and F.I.R. was not with the police at the time of inquest and that the first information report was an afterthought.

It is contended that the statement of P.W.-1 before the Court being an eyewitness of the incident is an afterthought and belied by the fact that he did not mention himself as an eyewitness in the first information report. His statement cannot be treated as an eyewitness account. There are lots of improvements and contradictions in his statement. He could not narrate the correct age of the children despite being directly related to them. The improvements in the statement of P.W.-1 as pointed out are that he did not describe himself as having witnessed the incident in the first information report or in the statement given to the police. For the first time, before the trial Court he deposed that the incident was seen by him while he was going to 'khalihan' of Pahalwan Singh from his house. The story of others being present at the scene of incident or reached there hearing his cries was developed in his deposition before the Court. The motive behind the crime i.e. the incident of theft and Panchayat having taken place in the village is too remote and is irrelevant in a case of direct evidence. The scribe of the F.I.R., Gulab Singh (P.W.-10) was present in his house and was called by the first informant to write the report.

Learned counsel further submits that the medical condition of the dead body of Shailendra suggests that he was drowned and his body remained in water for a sufficient long time. Though the cause of death was drowning undoubtedly but the postmortem report says that the skin of hands and legs of the deceased was having "bleached corrugated appearance". Rigor mortis had passed off from the upper portion of the body and was present in legs. There was no external injury on the dead body. The doctor (P.W.-8) who conducted postmortem admitted in his deposition that "bleached corrugated appearance in hands and legs" of the dead body is a proof of the fact that the body had remained in water for a long sufficient time. As per the medico-legal opinion in the Modi's Medical Jurisprudence & Toxicology, the said condition of the body appears only it remained in the water for about 10 to 12 hours or more hours. However, as per the statement of eyewitnesses P.W.-1 and P.W.-2, the accused persons ran away soon after pushing children into the 'Well'. Other villagers reached immediately on the spot hearing cries of the eyewitnesses and they started rescue operation. Both the children were taken out of the 'Well' within a period of 2 hours i.e. by 4:00 PM. It was, thus, an admitted fact in the ocular evidence that the body of the deceased did not remain in water for a long time. The medical evidence thus completely demolishes the prosecution story making it wholly improbable.

It is further contended that another eyewitness P.W.-2 Drag Pal Singh is a chance witness set up by the first informant to falsely implicate the accused persons. As per the first information report, the incident was seen by two persons namely Drag Pal Singh and Natthu Dhobi. The other eyewitness was not produced in the witness-box. It has come up in the statement of P.W.-2 Drag Pal Singh that he was carrying an ill-will against the accused on account of an old dispute between their families.

There was strong suggestion of enmity between P.W.-1 and Sobaran, the brother of the appellants who was falsely implicated as a conspirator under Section 120-B. He was acquitted as no evidence was brought against him. No independent witness has been examined and deposition of two eyewitnesses is not trustworthy inasmuch as they are interested/inimical witnesses and deposed against the accused out of animosity.

Lastly, it is stated that there was no overt-act of Prema, the appellant no. 2 who allegedly asked the main accused to push the children into the 'Well'. He cannot be said to have shared common intention with the main accused Jaikaran and his conviction under Section 307 read with Section 34 IPC for life imprisonment is faulty. Reliance is placed upon the judgments of the Apex Court in A. Mohnam vs. State of Kerala A. Murukan vs. State of Kerala1 and Manaji Kaluji Thakor and others vs. State of Gujrat2.

Reliance has also been placed upon the judgment of the Apex Court in Sunil Kundu and another vs. State of Jharkhand3 (with connected appeals) to submit that when eyewitness account is totally inconsistent with medical evidence and there are improvements in the eyewitness account, it is not safe for the Court to rely on the testimony of tainted ocular witnesses and keep the medical evidence aside. The genesis of the prosecution case is deep rooted enmity between family of accused and the deceased. The possibility of their false implication because of enmity cannot be ruled out. The major lacuna in the prosecution case and the inconsistencies in the evidence of the prosecution witnesses cannot be overlooked.

Learned AGA, in rebuttal, submitted that mere omission in the first information report of the fact of presence of the first informant at the scene of incident would not by itself demolish the prosecution theory. The evidence of survivor Juggan has to be demolished first by the defence. The defence has failed to prove that he was tutored witness. The testimony of injured witness cannot be discarded on the minor discrepancies shown in the statement of eyewitnesses. Inculpatory part of their evidence is sufficient to implicate the appellant. It is settled law that the medical evidence is only corroborative. The cogent, reliable and clinching testimony of eyewitnesses cannot be discarded on the opinion of the medical expert. The omission in the inquest report are not fatal to the prosecution case. The number and time of F.I.R., name of the first informant have been duly mentioned in the inquest. The cause of death of the deceased as a result of pushing him into the well is also mentioned. Mere fact that the name of accused has not been disclosed in the inquest is not sufficient to hold that the F.I.R. was ante-time.

We have heard the rival submissions of the learned counsel for the parties and perused the record.

So far as the submission of learned counsel for the appellant with regard to F.I.R. being ante time, it would be pertinent to note that the inquest report is only aimed to discover whether in a given case, death was accidental, suicidal or homicidal and in what manner and by what weapon or instrument, the injuries on the body appear to have been inflicted. It is for this limited purpose that the persons acquainted with the facts of the case are summoned and examined under Section 175 Cr.P.C. for preparation of the inquest report.

The provision for holding of inquest is contained under Section 174 Cr.P.C. The investigation under Section 174 Cr.P.C. is limited in its scope and is confined to ascertainment of the apparent cause of death. The details of overt acts are not necessary to be recorded in the inquest report. The question regarding the details as to how the deceased was assaulted or who assaulted him or under what circumstances he was assaulted or who are the witnesses of the assault is foreign to the ambit and scope of the proceedings under Section 174 Cr.P.C. Neither in practice nor in law is it necessary for the person holding the inquest to mention these details. Reference may be made to the judgment of the Apex Court in Radha Mohan Singh alias Lal Saheb and others vs. State of U.P.4. In view of the above legal position, the arguments of the learned counsel for the appellant of F.I.R. being antetime, is not tenable.

The instant case is a case of direct evidence. It would, therefore, be proper to analyze the ocular evidences brought before the Court by the prosecution. The prosecution had examined two witnesses i.e. P.W.-1 and P.W.-2 as eyewitness of the incident. Their testimony is most important to find out the truth of the prosecution story. As per the prosecution case, P.W.-5 is also a victim of the crime perpetrated by the accused/appellant. His testimony is also required to be appreciated so as to assess the weight of the ocular evidences placed by the prosecution to implicate the accused/appellant.

In the instant case, the first information report was lodged by P.W.-1 Lakhan Singh who is related to the deceased. It was a written report scribed by Gulab Singh (P.W.-10) who was not present at the time of incident. The F.I.R. does not mention presence of P.W.-1 at the scene of incident or having seen the incident. The time of incident was about 2:00 PM. The place of incident is a 'Well' situated near the house of the deceased. The first informant is not a neighbour but a close relative of the deceased who was living at some other place in the same village. He claims of being present in the house of the victims soon before the incident and narrates the story in his deposition for the first time before the Court of having reached the spot and seen the incident himself. In his cross-examination, he states that he reached the house of Pahalwan Singh (father of the victims) five minutes before Vinay Kumar came to call the children (victims) for playing outside. Prior to that, he was in his house and before that he went to his fields. He states that he had gone to the house of his sister as his brother-in-law Pahalwan Singh went out for some work. As per deposition of P.W.-1, when the boys left the house. He also left after 10 minutes and while going to the "Khalihan" of Pahalwan Singh he saw the accused standing near the 'Well' carrying 'Ballam' in their hands. He had also seen accused Jaikaran pushing the children into the well on the asking of Prema, the appellant no. 2. After the accused ran away, he raised cries and other villagers were collected within a short time. They started rescue operation and both the children were taken out of the 'Well' by 4:00 PM. Thereafter, he got a written report scribed by Gulab Singh at his house and went to the police station accompanying the survivor Juggan Singh to lodge the first information report. In his cross-examination, he states that he told the police of being a witness of the occurrence of crime but the said fact had not been recorded in his statement under Section 161 Cr.P.C. for the reasons best known to the police. P.W.-1 is not a witness of the inquest. He deposed that the site plan was prepared in his presence.

P.W.2, Drag Pal Singh, another eyewitness of the incident states that at around 2:00 PM, he was returning to his house from the 'Khalihan' of Bhajan Singh. When he reached near Durga Ji Temple, he saw Jaikaran, Prema, Shailendra and Juggan standing near the 'Well', Natthu Dhobi was 6-7 paces behind him. Jaikaran and Prema were carrying 'Ballam' and Prema told Jaikaran to push both the children into the 'Well'. Jaikaran on the asking of Prema held the hands of children and pushed them into the 'Well' one after the other. P.W.-2 cried and shouted at them to stop from doing so. The accused persons, however, ran towards the village and managed to flee. As per the statement of P.W.-2, this incident was witnessed by Lakhan Singh (P.W.-1) and Natthu. On their cries, other villagers reached the spot. They started rescue operation. Juggan (younger child) was taken out from the 'Well' in unconscious state whereas Shailendra (elder child) was brought out dead. Thereafter, he alongwith Lakhan (P.W.-1) and Juggan (P.W.-5) went to the police station to lodge first information report. He states that they carried a written report to the police station.

In his cross-examination, he states that his statement was recorded by the police in the police station. The scribe of the report Gulab Singh did not accompany them to the police station. When the children were taken out from the 'Well', Lakhan Singh P.W.-1 was present. Thereafter, P.W.-1 left for his house and called Gulab Singh to scribe the report. He further states that when he challenged accused persons, he then noticed Lakhan Singh standing near the Tamarind (Imli) tree. However, he did not remember as to whether he told this fact to anyone.

When confronted about omission of this fact in his statement under Section 161 Cr.P.C., he states that the fact of Lakhan Singh P.W.-1 being present at the place of occurrence of incident was specifically told to the police by him but the reason why this was not recorded is not known to him. This witness is not a witness of inquest and states that he does not know when inquest and site plan were prepared. He was not called by the police after recording his 161 Cr.P.C. statement. As per his statement, the police reached the spot on the next day of the lodging of the FIR in the morning. There is a suggestion of old enmity between the family of the accused persons and that of P.W.-2 which was denied by him.

P.W.-5 Jogendra Singh has been produced as a survivor of the incident. His age at the time of deposition was approximately 7 years. Before recording his oral deposition, it was ensured by the trial court that he was a competent witness. P.W.-5 states that he alongwith his brother Shailendra was pushed into the 'Well' by Jaikaran who pushed his brother first. He deposed that he could identify Jaikaran and when asked, he had identified a policeman standing in the Court as Jaikaran. P.W.-5 deposed about the presence of Prema but he refused to recognize him when asked. He states that he went to the Police Station after the incident and then to the hospital for treatment with the first informant. This witness had recognized his Advocate present in the Court.

P.W.-10 Gulab Singh scribe of the report deposed that he scribed the written report at the house of Lakhan Singh (P.W.-1) and knew him being resident of the village. He did not accompany first informant to the police station.

P.W.-3 Chunubad Singh is a witness who deposed of having seen the accused persons running towards village from the side of Durga Devi Temple at about 2:30 PM. He states that when he noticed the crowd near the 'Well', he also reached there. He saw that the elder child Shailendra was being taken out from the 'Well'. Thus he is a witness who had reached the site of the incident after occurrence. As per his deposition when he reached the spot, the younger child was already taken out from the 'Well'. Lakhan Singh (P.W.-1) was present near the 'Well' and this witness informed P.W.-1 that he had seen the accused persons running towards the village.

P.W.-4 Pahalwan Singh son of Pragi Singh is a witness of inquest and was produced to prove the same. It is noticeable that he is not the father of the deceased rather a villager carrying the same name.

There is a suggestion of old enmity between P.W.-1 (first informant and Sabaran brother of the accused persons who was also implicated as a conspirator in the first information report.

Analyzing the testimony of P.W.-1, it is noteworthy that his presence in the house of Pahalwan Singh was not natural. Unusual facts came out from his statement that he reached the house of his brother-in-law five minutes before the children left the house on the asking of Vinay to play outside. In the first information report, he did not mention of having witnessed the incident i.e. the fact of him being eyewitness is neither mentioned in the first information report nor in his statement under Section 161 Cr.P.C. recorded by the police. P.W.-1 narrated the motive of appellants to commit the crime in detail in the first information report but did not mention the fact of him being present on the spot. The first information report is a written report scribed by Gulab Singh P.W.-5 on the dictates of Lakhan Singh (P.W.-1) at his house. It is unusual that in the first information report he could state motive for commission of crime in detail; the presence of Dragpal Singh (P.W.-2) and Natthu Dhobi another villager at the scene of occurrence; P.W.-3 Chunuwad Singh having seen the accused persons running away and that the crime having been committed by two accused as a result of a conspiracy hatched by their elder brother Sabaran on account of old enmity. But he did not mention his presence at the scene of occurrence i.e. having witnessed the crime through his own eyes. He states in his deposition that the map ('Naksha Nazri') was prepared in his presence but his presence at the scene of occurrence at the time of incident was not shown therein for the reasons known to the Investigating Officer. The inquest was thus admittedly prepared in his presence but he is not a witness of inquest. He has been mentioned as a first informant but not an eyewitness in the inquest report.

Having gone through the oral testimony of eyewitnesses and other prosecution witnesses, the noticeable facts culled out from their depositions are:-

(i) P.W.-1 is the witness who had first reached the scene of occurrence. Another eyewitness Drag Pal Singh (P.W.-2) also says that he saw Lakhan (P.W.-1) standing under Tamarind (Imli) tree near the 'Well'. In the Naksha Nazri, Imli tree has been shown but presence of P.W.-1 is not shown.

(ii) Thus, P.W.-1 is the creator of the prosecution story of being present in the house of Pahalwan Singh when the children were called by Vinay to play outside; leaving the house after children left; reaching at the scene of incident while going to the 'Khalihan' of Pahalwan Singh; witnessing accused persons standing near the 'Well' carrying 'Ballam' and Jaikaran pushing the children into the 'Well' on the asking of Prema.

(iii) He is also the witness of Drag Pal Singh and Natthu (other two reported eyewitnesses) having seen the crime.

(iv) He had also introduced P.W.-3 Chunuwad a witness who had seen the accused persons running away towards village after commission of crime.

(v) He had gone to call Gulab Singh P.W.-10 from his house for writing the report after the dead body of Shailendra was taken out from the 'Well' and got the written report scribed by dictating the incident to Gulab Singh (P.W.10).

(vi) P.W. 10, Gulab Singh states that the report was scribed by him at the house of Lakhan Singh.

Thus the testimony of this witness namely Lakhan Singh P.W.-1 assumes greater importance. The improvements in his statement before the Court of being present at the scene of occurrence is noticeable from the fact that in the first information report wherein he did not mention him being eyewitness of the crime rather it was clearly reported therein that the incident was witnessed by two other villagers namely Drag Pal Singh and Natthu Dhobi. The first information report is a written report which narrates first story of commission of the crime. The P.W.-1 who happens to be first informant has narrated the motive of the appellants to commit the crime. He had also implicated Sobaran as a conspirator of the crime which was perpetrated by his brothers/accused persons. But surprisingly, he did not mention himself as an eyewitness therein.

For the first time, in the Court, he had come up with the story that he witnessed the crime through his own eyes. When confronted with this omission in his statement to the police, his reply that though he mentioned all the details but it was not recorded by the police, is evasive.

P.W.-6 had deposed that the first information report was lodged by him on a written report handed over by P.W.-1. The Investigating Officer P.W.-7 deposed that the presence of P.W.-1 was not reported either by him or by another eyewitness namely Drag Pal Singh in their statements under Section 161 Cr.P.C. P.W.-7 in cross-examination, he states that P.W.-1 did not state of him going to the 'Khalihan' of Pahalwan Singh and hence it was not recorded. The statements of P.W.-7 and P.W.-2 regarding preparation of site plan is also at variance inasmuch as there is a categorical denial by P.W.-2 of him being present at the time of preparation of the site plan. He categorically deposed that he was not called by the police after his statement under Section 161 Cr.P.C. (of having witnessed the crime) was recorded at the police station. Whereas P.W.-7 states that the site plan was prepared at the pointing out of P.W.-2 Drag Pal Singh and P.W.-1 Lakhan Singh was also present at that time. When confronted, P.W.-7 states that P.W.-1 did not show the place from where he had seen the incident. As no such statement came from P.W.-1 and hence he was not shown in the site plan.

The omissions, contradictions and variance in the statements of two eyewitnesses (P.W.-1 and P.W.-2) and the police witness (P.W.-7) who had prepared the first reports of the crime are not minor but go to the root of the matter. The statement of P.W.-1 before the Court, in the said circumstances, be considered to be an improvement. His presence at the scene of occurrence is doubtful. The testimony of another eyewitness P.W.-2 is also inconsistent. It appears that he had seen the whole incident through the eyes of P.W.-1 whose presence at the scene of occurrence is itself doubtful.

The entire prosecution case rested on the evidence of P.W.-1 and P.W.-2 who are stated to be eyewitnesses of the incident.

The prosecution case begins with the story narrated by P.W.-1 in a written report which was handed over by him to the police and was developed/improved in his deposition before the Court. P.W.-2 though supported the said story but the suggestion of him being an interested witness cannot be ruled out considering his deposition in totality. There is evidence of old animosity between the family of P.W.-2 and the accused persons. The implication of Sobaran brother of the accused/appellant by P.W.-1 on account of old enmity is also evident of the said fact.

It is true that the fact of witnesses being interested and inimical because they belong to another faction would not be a ground by itself to reject their testimony in toto. But in such a case, their evidence is to be scrutinized with great circumspection.

Learned counsel for the appellant submits that their evidence cannot be relied upon inasmuch as there was deep animosity between the families of the deceased and the accused. There is also evidence of animosity between the family of the accused and both the eyewitnesses P.W.-1 and P.W.-2. P.W.-1 is closely related to the deceased and as such his testimony is to be discarded.

On the issue of appreciation of evidence of interested/inimical witnesses, it is well settled that the evidence of interested or inimical witnesses is to be scrutinized with great care but cannot be rejected on the ground of being a partitioned evidence. All that is necessary is that the evidence of interested witnesses should be subjected to careful scrutiny and accepted with caution. If on such scrutiny, the interested testimony is found to be intrinsically reliable or inherently probable, it may, by itself, be sufficient, in the circumstances of the particular case, to base a conviction thereon. (Reference Dalip Singh vs. State of Punjab5, Piara Singh and others vs. State of Punjab6 and Hari Obula Reddy and others vs. The State of Andhra Pradesh7).

Further in Ramashish Rai vs. Jagdish Singh8, the Apex Court has observed that the testimony of inimical witnesses cannot be thrown out on the threshold by branding them as inimical witnesses. The enmity is a double-edged sword. It can be a ground of false implication. It also can be a ground for assault. Therefore, a duty is cast upon the Court to examine the testimony of inimical witnesses with due caution and diligence.

The same principle has been reiterated in a recent judgment of the Apex Court in Yogesh Singh vs. Mahabeer Singh and others9. Wherein the Apex Court has laid down that the evidence of a closely related witness/inimical witnesses is required to be carefully scrutinised and appreciated before any conclusion is made to rest upon it, regarding the convict/accused in a given case.

So far as issue of discrepancies in the ocular evidence, it is well settled law that the minor discrepancies are not to be given undue emphasis and the evidence is to be considered from the point of view of trustworthiness. The test is whether the same inspires confidence in the mind of the Court. If the evidence is incredible and cannot be accepted by the test of prudence, then it may create a dent in the prosecution version. If an omission or discrepancy goes to the root of the matter and ushers in incongruities, the defence can take advantage of such inconsistencies. It needs no special emphasis to state that every omission cannot take place of a material omission and, therefore, minor contradictions, inconsistencies or insignificant embellishments do not affect the core of the prosecution case and should not be taken to be a ground to reject the prosecution evidence. The discrepancies which do not shake the basic version of the prosecution must not be attached undue importance to discard the prosecution case. The discrepancies which are due to normal errors of perception or observation should not be given importance. The omission should create a serious doubt about the truthfulness or creditworthiness of a witness. It is only the serious contradictions and omissions which materially affect the case of the prosecution may be give due allowance.

Reference Rammi @ Rameshwar vs. State of M.P.10, Leela Ram (dead) through Duli Chand vs. State of Haryana and another11, Bihari Nath Goswami vs. Shiv Kumar Singh and others12, Sampath Kumar vs. Inspector of Police, Krishnagiri13, Mritunjoy Biswas vs. Pranab @ Kuti Biswas and another14 and Yogesh Singh9.

In the light of the said legal principles, after analysis of the oral evidences of P.W.-1 and P.W.2, we found that the first informant had scene the incident through eyes of Drag Pal Singh who was firstly reported as an eyewitness but before the Court the entire story was turned and incident was presented through the eyes of P.W.-1. We are thus of the opinion that the omission/contradictions noted in the foregoing paragraphs are not minor but they are of very substantial nature which affect the truth of the evidence given before the Court. The learned Sessions Judge has surprisingly ignored the said omissions and curiously proceeded on the assumption that from the statement of P.W.-1 under Section 161 Cr.P.C., it seems that he was probably present at the scene of occurrence. In this case, the prosecution is not attempting to establish the guilt on the circumstantial evidence rather it has relied on the evidence of P.W.-1 and P.W.-2 who claimed to be eyewitnesses to the perpetration of the crime by the accused persons. Hence infirmities as pointed above in the evidence of P.W.1 and P.W.-2 are of much importance. The question before this Court is whether it is safe to act on their testimony in view of the said omissions and discrepancies noted above.

At the cost of repetition, we may refer to the first information report lodged by P.W.-1 where there is absolutely no reference of P.W.1 having seen the incident or reaching the spot of the crime. On the other hand, P.W.-2 was projected as eyewitness with another person Natthuram who did not enter the witness box. For the omissions in the F.I.R. and police statement being of substantial nature, which affect the truth of the evidence given before the Court, the evidence of P.W.-1 and P.W.-2 cannot be accepted in toto as a proof of the crime.

The improvements in the statement of the eyewitness who were inimical and had the motive to falsely implicate the accused persons make the prosecution story highly doubtful.

In Yudhishtir vs. The State of Madhya Pradesh15, the Apex Court has held that when a particular fact deposed to by witnesses does not find mention both in F.I.R. and in the statements recorded under Section 161 Cr.P.C., it is an improvement and it cannot be considered.

Now we are left with the statement of another important witness namely P.W.-5. The prosecution has produced P.W.-5 as a survivor of the crime. He is a child witness. According to learned counsel for the appellant, his evidence is unworthy of credence as he did not identify the accused persons.

The law relating to assessment of evidence of a child witness is that if a witness is a child, his evidence must be evaluated more carefully with great circumspection because a child is susceptible to be swayed by what others tell him and thus a child witness is an easy prey to tutoring. The credibility of evidence of a child witness would depend upon the circumstances of each case. The only precaution which the Court should bear in mind while assessing the evidence of a child witness is that the witness must be reliable one and his/her demeanour must be like any other competent witness and there is no likelihood of him/her being tutored. There is no rule or practice that in every case the evidence of such a witness is to be corroborated before a conviction can be allowed to stand but as a rule of prudence the court always finds it desirable to have the corroboration to such evidence from other dependable evidence on record. It is more a rule of practical wisdom than of law. (Reference Dattu Ramrao Sakhare and others vs. State of Maharashtra16, Panchhi and others vs. State of U.P.17 and Yogesh Singh9.

Before examining P.W.-5, the prosecution proved that this witness was able to understand the questions and to give rationale answers thereof. His narration of the incident is same as that of P.W.-1 in the first information report. He is survivor of the assault. When he was asked to identify the accused persons in the Court, he refused to recognise accused Prema and was not able to identify another accused Jaikaran. He pointed out towards a police constable present in the Court to tell that he was Jaikaran. It is highly probable that he did so out of fear and due allowance is to be given to the fact of him being a sufferer and being traumatised by the incident. But we cannot ignore that he has been projected as a survivor of the assault who had escaped uninjured. It is dangerous to rely upon his testimony as an eyewitness or injured witness. Being a child witness, there is every likelihood of him being tutored. His evidence, therefore, is required to be corroborated from other evidences on record.

In the light of the facts and circumstances of the present case noted above, we shall now examine medical evidence on record.

The cause of death stands duly supported by the medical evidence as P.W.-8, Dr. K.N. Singhal who conducted the postmortem examination had opined that the death was caused due to "Asphyxia as a result of drowning". The postmortem was conducted after approximately 24 hours of reported death i.e. on 29.3.1988 at about 2:00 PM. As per the statement of eyewitnesses, the incident occurred on 29.3.1988 at 2:00 PM when the deceased was pushed into the 'Well'. The approximate time of death reported is about one day. The victim was 10 years old.

The physical condition of the dead body as found:-

(i) body of leaned thin male child.

(ii) eyes closed, mouth closed while tenacious froth coming out of both nostrils and much more on compression of the chest.

(iii) the skin of hands and feet congested shows a "bleached corrugated appearance".

(iv) mud particles sticked to fingers and nails of both hands.

(v) rigor mortis passed off from neck, upon limbs and present in lower limbs.

(vi) postmortem staining present on head, neck, chest, greenish discoloration of both illiac Fossa seen.

(vii) No external injury seen.

(vii) both lungs are distended oedematous, present on pressure on section exude frothy, blood-stained fluid.

(viii) Both larynx and trachea congested.

The condition of the skin of the hands and the feet showing a bleached, corrugated and sodden appearance has been explained in Modi's Medical Jurisprudence & Toxicology, Twenty Second Edition (Page 287).

It states as quoted:-

"The skin of the hands and the feet shows a bleached, corrugated and sodden appearance, after the body has laid in water for ten to twelve or more hours. This condition of the skin is known as the washerwoman's hand. It is first seen in the fingertips within three to four hours and later by twenty-four hours, in both the hands. It proves only that the body was immersed for a prolonged time without reference to the cause of death".

It further says that rigor mortis appears early, especially when a violent struggle has taken place before death.

The defence placing the opinion of doctor in the postmortem report submits that the said opinion contradicts the prosecution theory. The contention is that if we take the prosecution case as it is, the children were rescued within two hours of pushing into the 'Well'. The body remained in water for a very short time of about 1½ to 2 hours. In such a short period, the appearance of the body showing the bleached, corrugated appearance would not occur. The doctor was cross-examined on this issue and he also admits that such an appearance would occur only if the body remains in water for a longer time. The defence, thus, said that the deceased child had fallen into the 'Well' which was near his house and his body was found after a long time. In order to implicate the appellants on account of old animosity, the first informant had created the entire story. Such a condition of the body cannot occur in a short time which had elapsed in the rescue operation as per own case of the prosecution.

Before we deal with this aspect of the matter, the legal position with reference to the ocular evidence viz-a-viz medical evidence is to be seen.

It is settled legal position that the ocular evidence would have primacy unless it is established that the oral statement is totally inconsistent with the medical evidence.

In Ram Narain Singh vs. State of Punjab18, the Apex Court held that where evidence of the witnesses for the prosecution is totally inconsistent with the medical evidence or the evidence of the Ballistic expert, it amounts to a fundamental defect in the prosecution case and unless reasonably explained it is sufficient to discredit the entire case.

In State of Haryana vs. Bhagirath and others19, it was held that the opinion given by a medical witness need not be the last word on the subject. Such opinion shall be tested by the court. If the opinion is bereft of logic or objectivity, the Court is not obliged to go by that opinion. Of course, due weight must be given to the opinion given by the persons who are experts in the particular subject.

In Sahebrao Mohan Berad vs State Of Maharashtra20, it is held that the opinion of the doctor who has examined the deceased and conducted the postmortem is of a competent witness to speak about the nature of injuries and cause of death. Unless there is something inherently defective, the Court cannot substituted its opinion for that of the doctor.

In State of Haryana vs. Bhagirath19, the Apex Court has held that where the medical evidence is at variance with ocular evidence, it has to be noted that it would be erroneous to accord undue primacy to the hypothetical answers of medical witnesses to exclude the eyewitnesses account which have to be tested independently and not treated as the variable keeping the medical evidence as the constant.

Where the eyewitnesses account is found credible and trustworthy, a medical opinion pointing to the alternative possibilities cannot be accepted as conclusive.

The eyewitnesses account requires a careful independent assessment and evaluation for its credibility, which should not be adversely prejudged on the basis of any other evidence, including medical evidence, as the sole touchstone for the test of such credibility. The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witnesses held to be creditworthy; consistency with the undisputed facts, the credit of the witnesses; their performance in the witness box; their power of observation etc. Then the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation.

In Solanki Chimanbhai Ukabhai vs. State of Gujarat21, the Apex Court observed that ordinarily, the value of medical evidence is only corroborative. Unless, however, the medical evidence in its turn goes so far that it completely rules out all possibilities whatsoever of injuries taking place in the manner alleged by eye witnesses, the testimony of the eye witnesses cannot be thrown out on the ground of alleged inconsistency between it and the medical evidence.

Insofar as the opinion of doctor regarding the time of death, the issue is no more res integra. The Courts have held that opinion of doctor about the time of death would not mean that doctor was able to fix any extraordinary time of death.

In Mangu Khan and others vs. State of Rajasthan26, the Apex Court examined a similar issue wherein the post-mortem report mentioned that the death had occurred within 24 hours prior to post-mortem examination. In that case, such an opinion did not match with the prosecution case. The Court examined the issue elaborately and held that the physical condition of the body after death would depend on a large number of circumstances/factors and nothing can be said with certainty. In determining the issue, various factors such as age, health condition of the deceased, climatic and atmospheric conditions of the place of occurrence and the conditions under which the body is preserved, are required to be considered. Reference may also be made to the judgment of the Apex Court in Rakesh and another vs. State of Madhya Pradesh27.

Thus, the position of law in a case where there is a contradiction between medical evidence and ocular evidence can be crystallised to the extent that though the ocular testimony of a witness has greater evidentiary value viz-a-viz medical evidence but when medical evidence makes the ocular testimony improbable that becomes a relevant factor in the process of the evaluation of evidence. However, where the medical evidence goes so far that it completely rules out all possibility of the ocular evidence being true, the ocular evidence may be disbelieved.

In the light of the said legal position, we may notice the inconsistency between the ocular and medical evidence as shown from the records. The cause of death of victim in the postmortem report is the result of drowning. The discrepancy noticeable is from the physical condition of the dead body. The postmortem report says that the skin of the hands and feet showed a "bleached corrugated appearance". As per Modi, skin shows such appearance after the body has laid in water for 10 to 12 or more hours. This condition of the skin, he mentions as "the washerwoman's hands". The phases of its occurrence are also described. It is first seen in the fingertips within three to four hours and later by twenty-four hours, in both the hands. The conclusion in the opinion of Modi is that it proves only that the body was immersed for a prolonged time without reference to the cause of death.

That means a dead body which remains for a long period of time (10-12 hours or more) will show "bleached corrugated appearance" within 3-4 hours and later by 24 hours.

In the instant case, there is no proof of the fact that body remained immersed in water for a long time. The doctor P.W.-8 when cross-examined on this issue has stated that such appearance occurs when body remains for a long period and that there may be 2-3 hours difference on both sides that means the period of it being within the water may be 7-10 hours.

Whereas in the instant case as per eyewitnesses account, as soon as the accused Jaikaran pushed the children into the 'Well', they raised cries, other villagers/neighbours were collected immediately and they started rescue operation. Both the children were taken out of the 'Well' within 2 hours i.e. by 4:00 PM. Thus the dead body of Shailendra can be said to remain under water for not more than 1½ to 2 hours as the entire rescue operation was completed within 2 hours. Modi does not suggest that such condition may occur when body remained in the water for such a short time i.e. for 1 to 2 hours. This period does not fit in the words "prolonged time" as mentioned in Modi. There may be variable circumstances/factors such as age, health condition of the deceased, climatic and atmospheric conditions of the place of occurrence, nature of water into the 'Well' and the conditions under which the body was preserved, however, no such suggestion came from the doctor P.W.-8 when he was cross-examined on the issue.

It is this inconsistency pointed out in the ocular and medical evidence which goes to the root of the matter as the presence of eyewitnesses at the scene of occurrence at the time of incident as discussed above, is highly doubtful. The medical evidence though supports the prosecution story of death being caused by drowning but completely belies the version that the deceased Shailendra was taken out of the 'Well' within a short period (1½ to 2 hours) as the P.W.-1 and P.W.2 were present at the time of incident.

Both the accused persons in their statement under Section 313 Cr.P.C. stated in their defence that searches were going on into the 'Well' and 'tanks' of the village for the deceased Shailendra. Nothing was said by them about another child Juggan who escaped unhurt. On the suggestion of the defence that Shailendra fell into the 'Well' at an earlier point of time and lately when he was found dead, the first informant had created the story to falsely implicate the accused, the trial court is silent. It had simply proceeded on the assumption that P.W.-1 had witnessed the occurrence. Lastly, we cannot lose sight of the fact that in a matter which involves the witnesses belonging to familiar families with deep set animosity some evidence beyond the ocular evidence should also be looked for. In this case, we have found that the medical evidence does not support the prosecution theory.

There is one more material aspect of the matter that the father of the victims is conspicuously absent. He may not be present at the time of incident or away from his house but he was a material witness who could have thrown light on the circumstances coming out in the prosecution story like on the aspects of enmity, likelihood of presence of children at home, the time when he returned back to the village and came to know about death of his child and what was actually told to him. He is not a witness of the inquest which was supposedly prepared by the police near his house. Whether he came back by then is not known. The prosecution is completely silent about his presence before and after the incident. The father of the petitioner was neither examined by the police nor produced in the Court. Mother of the child who was at home was not produced to discard the defence theory that the deceased Shailendra fell into the 'Well' situated near his house while playing and accused persons were falsely implicated in a conspiracy hatched by Lakhan Singh (P.W.-1) who was inimical to Sobaran (brother of the accused) and had gone to the extent of implicating him as a conspirator.

Having carefully analyse ocular and medical evidence and in totality of the facts and circumstances before us, we reach at an inescapable conclusion that :-

(i) The evidence of the eyewitnesses is incredible and untrustworthy.

(ii) The presence of eyewitnesses at the scene of occurrence is doubtful. The eyewitnesses were interested and inimical and had the motive to falsely implicate the accused persons. The testimony of child witness who was projected as a survivor of the assault remains uncorroborated. Nothing material could be elicited from his testimony. No undue weightage can be given to his deposition.

(iii) In the facts and circumstances of the case, the conflict between the ocular evidence and medical evidence is evident and as such that it makes the presence of eyewitnesses highly doubtful.

It is cardinal principle of criminal jurisprudence that the guilt of the accused must be proved beyond all reasonable doubts. However, burden on the prosecution is only to establish its case beyond all reasonable doubts and not all doubts.

Another golden thread which runs through the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. (Reference Kali Ram vs. State of Himanchal Pradesh28, Chandrappa and others vs. State of Karnataka29 and Golbar Hussain and others vs. State of Assam and another30.

It is equally well settled that the benefit of doubt does not warrant acquittal of the accused by resorting to surmises, conjectures or fanciful considerations. Only reasonable doubts belong to the accused (Reference State of Punjab vs. Jagir Singh31 and Shivaji Sahebrao Bobade and another vs. State of Maharashtra32.

Thus, in the instant case, on cumulative evaluation of the probative value of the evidence before us put into the scales, we find that major contradictions and improvements in the evidence of the witnesses and conflict in the medical and ocular evidence tilts the balance in favour of the accused persons. The prosecution has failed to establish the guilt of the accused appellants beyond all reasonable doubts. As the balance tilts in favour of the appellants, we are of the view that the appellants should get benefit of doubt. The appellants are thus acquitted of the offences under Section 302 and 307 IPC both readwith Section 34 of the Indian Penal Code. The accused/appellant Prema is on bail. His bail bonds are cancelled and sureties are discharged.

The appeal is, accordingly, allowed.

				 (J.J. Munir,J.)       (Sunita Agarwal,J.)
 
Order Date :-15.5.2018
 
Brijesh

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