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REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1794 of 2013 MACHINDRA    ...APPELLANT(S)

VERSUS

SAJJAN GALPHA RANKHAMB & ORS. ....RESPONDENT(S)

J U D G M E N T

Pinaki Chandra Ghose, J.

The  instant  appeal  is  directed  against  the  judgment  and  order

dated 24th February, 2011 passed by the High Court of Judicature

of Bombay, Bench at Aurangabad, in Criminal Appeal No.333 of

2010,  whereby  the  High  Court  while  allowing  the  appeal  of

respondent Nos.1 & 2 herein, set-aside the judgment and order of

conviction  and  sentence  dated  24.08.2010  passed  by  learned

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Sessions Judge,  Osmanabad,  and acquitted  them of  the  offence

punishable under Section 302 read with Section 34 of the Indian

Penal Code (for short “IPC”).

2. Brief  facts  necessary  for  disposal  of  the  present  appeal  are  as

follows: Parties herein are close relatives as respondent No.1 is the

brother-in-law of the appellant herein (his sister having married to

the appellant) and respondent No.2 is the son of respondent No.1.

It appears that appellant had purchased 3 acres of land from his

father-in-law (father of respondent No.1) about 20 years before the

date of occurrence. On account of the said transaction, respondent

No.1  was  not  happy,  which  is  stated  to  be  the  alleged  enmity

between the parties. Appellant had two sons, namely, Gorakh and

Dattatreya.  On  21.04.2007,  a  complaint  was  lodged  by  the

appellant  at  Osmanabad  Rural  Police  Station  stating  that  the

complainant, his wife and other relatives had gone to attend the

marriage  of  his  granddaughter  Rupabai,  while  his  younger  son

Dattatreya remained at home. After attending the marriage, when

they came back, one Balu Shekha Solawar told the complainant

that accused Sajjan and his son Kakasaheb had killed Dattatreya

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in  the  field  of  Sanjay  Sambhaji  Jethithor.  The  complainant

immediately rushed towards the spot and found the dead body of

Dattatreya lying on the field.  The villagers who were present on the

spot told the complainant that accused killed Dattatreya. On the

basis of the complaint, Osmanabad Rural Police Station registered

the  case  as  Crime No.36 of  2007 under  Section 302 read with

Section 34 of IPC against respondent Nos.1 & 2 herein, who are

none  other  than  maternal  uncle  of  deceased  and  his  son  for

causing death of the deceased with stick and Khil (yoke pin). After

completion  of  the  investigation  by  the  Police  Inspector  of

Osmanabad  Police  Station  (PW-19),  final  report  was  submitted

before the Court of Chief Judicial Magistrate, Osmanabad. Since

the offence was exclusively triable by the Court of Sessions, the

case  was  committed  to  the  Court  of  learned  Sessions  Judge,

Osmanabad. Twenty witnesses were examined on prosecution side

and five  witnesses  were  examined on defence  side.  The  learned

Sessions Judge vide  his  judgment  and order  dated  24.08.2010,

convicted respondent Nos.1 and 2 herein for  offence punishable

under Section 302 read with Section 34 of IPC and sentenced them

to suffer imprisonment for life and to pay a fine of Rs.1,000/- each,

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in default to make payment of fine, to suffer further imprisonment

for two months.   

3. Being  aggrieved  by  the  judgment  and  order  of  conviction  and

sentence passed by the learned Sessions Judge, Osmanabad, the

accused  respondents  preferred  Criminal  Appeal  No.333  of  2010

before  the  High  Court  of  Judicature  of  Bombay,  Bench  at

Aurangabad. The High Court allowed the said appeal, set-aside the

judgment and order of conviction and sentence dated 24.08.2010

passed  by  learned  Sessions  Judge,  Osmanabad,  and  acquitted

respondent Nos.1 & 2 of the offence punishable under Section 302

read  with  Section  34  of  IPC.  Hence,  the  present  appeal  by  the

father of the deceased who is the complainant in this case.  

4. We have heard Mr. Rajat Kapoor, learned counsel appearing for the

complainant-appellant  herein  and  Mr.  M.Y.  Deshmukh,  learned

counsel appearing for respondent Nos.1 & 2 herein, at length. We

have also perused the judgments of both the High Court and the

Trial Court as also the evidence on record.   

5. Learned counsel appearing for the appellant submitted that  the

High Court failed to consider the autopsy conducted on the body of

deceased wherein compound fracture of  skull  over  left  temporal

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bone was found which shows the gravity of the offence. He further

submitted  that  the  recovery  of  weapon  of  offence  made  at  the

instance of the accused-respondents was also ignored by the High

Court.  Moreover,  the  High  Court  erred  grossly  in  holding  that

testimonies of PW-4 and PW-10 falsify each other.

Per  contra,  learned  counsel  appearing  for  the  respondents

submitted that PW-4 and PW-10 ought to have been disbelieved

being interested witness since both of them were tenants of  the

land owned by deceased. Moreover, considering the gravity of head

injuries, if minutely perused, it is not possible for any person to

have  survived  for  five  minutes.  He  further  submitted  that  the

evidence of the alleged eye-witnesses, i.e. PW-3, PW-4 and PW-10,

is totally concocted and not supported by medical evidence because

PW-6 - Doctor has not mentioned the probable age and cause of

the  injuries.  Furthermore,  the  Investigating  Officer  (PW-19)  has

nowhere in his examination before the Trial Court mentioned about

any  eye-witness  to  the  incident.  As  per  the  admission  of  said

Investigating Officer, he was informed about the incident by some

unknown  person.  If  this  is  the  case,  then  the  testimony  of

eye-witnesses appears to be false and unbelievable.

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7. Learned  counsel  for  the  respondents  concluded  his  arguments

stating that the prosecution story is again doubtful for two more

reasons: (i) PW-3 had informed about the alleged incident to one

Chandrakant  Gophane,  however,  the  prosecution  had  not

examined him; (ii) There was no propriety in sending the accused

for  medical  examination  on  21.04.2007,  when  admittedly  the

accused were arrested on 22.04.2007 which is proved by testimony

of  PW-19 and corroborated by the testimony of PW-20.    

8. We have noticed that the Trial Court after relying mainly upon the

testimony of PW-3, PW-4 and PW-10, found that the prosecution

has proved its case beyond reasonable doubt, corroborated by the

medical evidence of doctor (PW-6) who conducted the autopsy of

the deceased and by the report of chemical analyzer. It was held

that the respondents with common intention to kill the deceased

had caused injuries  with stick and Khil,  to  which the deceased

succumbed later on.

9. The  High  Court  has,  however,  reversed  the  order  of  conviction

while holding that no reliance could be placed on the evidence of

PW-3. The High Court further held that both PW-4 and PW-10 had

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falsified  evidences  of  each  other.  Non-examination  of  weapon

recovered from the place of incident by the Chemical Analyzer also

made the case doubtful as per the opinion of the High Court.

Before answering the question that whether the High Court was

correct in allowing the appeal of the respondents herein, we wish to

supply  emphasis  on  one  of  the  cardinal  principles  of  criminal

jurisprudence pertaining to the ‘burden of proof on the prosecution’

in criminal cases. This Court has in a recent judgment in the case

of Yogesh Singh Vs. Mahabeer Singh & Ors., AIR 2016 SC 5160

= 2016 (10) JT 332, reiterated the said principle in the following

words:

“It is a cardinal principle of criminal jurisprudence that the guilt of the accused must be proved beyond all reasonable doubts. However, the burden on the prosecution is only to establish its case beyond all reasonable doubt and not all doubts.  Here,  it  is  worthwhile  to  reproduce  the observations made by Venkatachaliah, J., in State of U.P. Vs. Krishna Gopal and Anr., (1988) 4 SCC 302:

‘25. … Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth. To constitute reasonable doubt,  it  must be free from an overemotional response. Doubts must be actual and substantial doubts as to the guilt of the accused person arising from the evidence, or from  the  lack  of  it,  as  opposed  to  mere  vague apprehensions. A reasonable doubt is not an imaginary, trivial or a merely possible doubt; but a fair doubt based

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upon reason and common sense. It must grow out of the evidence in the case.  

26.  The  concept  of  probability,  and  the  degrees  of  it, cannot  obviously  be  expressed  in  terms  of  units  to  be mathematically enumerated as to how many of such units constitute  proof  beyond  reasonable  doubt.  There  is  an unmistakable subjective element in the evaluation of the degrees of probability and the quantum of proof. Forensic probability  must,  in  the  last  analysis,  rest  on  a  robust common sense and, ultimately on the trained intuitions of the  judge.  While  the  protection  given  by  the  criminal process to the accused persons is not to be eroded, at the same time, uninformed legitimization of trivialities would make a mockery of administration of criminal justice.”

11. Keeping in mind the aforesaid position of law, we shall now

examine the arguments advanced and materials on record to see

whether the findings of the High Court call for interference in the

facts and circumstances of the present case.

We have noticed that there are contradictions in the depositions of

PW-4 and PW-10 and none of them is eye-witness to the alleged

incident. Furthermore, PW-20 has proved in his deposition that he

medically examined respondent Nos.1 & 2 herein on 21.04.2007

and not on 22.04.2007 when they were arrested. It is a matter of

surprise  to  us  that  prosecution  had  not  examined  one  Sanjay

Jetithor  in  whose  field  the  alleged  incident  occurred.

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Non-examination of this material witness, who could have unfolded

the relevant facts of the case necessary for adjudication, makes the

prosecution version doubtful. It is also pertinent to mention here

that PW-3, who is an alleged eye-witness to the incident, had in his

deposition admitted that he passed the information on phone to

one Chandrakant Pandurang Gophane who was never examined by

the Trial  Court.  After  perusing the deposition of  PW-3,  we have

noticed that this witness and the respondent accused were not in

cordial terms as their cattle used to enter the fields of one another

and chapter  case was filed against  the  wife  of  accused on that

count.   On perusal of the record, it has further been noticed by us that

there  was  six  days’  delay  in  lodging  the  FIR  which  remained

unexplained throughout the trial and in the appeal before the High

Court.  One  last  fact  which  is  imperative  and  crucial  to  be

mentioned here is that opinion on the cause of injuries was neither

mentioned by doctor PW-6 in his deposition, nor in post-mortem

report.  In  criminal  cases  pertaining  to  offences  against  human

body, medical evidence has decisive role to play. A medical witness

who  performs  a  post-mortem  examination  is  a  witness  of  fact

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though he also gives an opinion on certain aspects of the case. This

proposition of law has been stated by this Court in Smt. Nagindra

Bala Mitraand Vs. Sunil Chandra Roy & Anr., 1960 SCR (3) 1,

as follows:  “The  value of  a  medical  witness is  not  merely  a  check upon  the  testimony  of  eye  witnesses;  it  is  also independent  testimony because it  may establish certain facts quite apart from the other oral evidence. If a person is shot at a close range, the mark of tattooing found by the medical witness would draw that the range was small, quite  apart  from  any  other  opinion  of  his. Similarly, fractures of bones, depth and size of the wounds would show the nature of the weapon used. It is wrong to say that it is only opinion evidence; it is often direct evidence of the facts found upon the victim's person.”  

Further it was observed in the case of State of U.P. Vs. Krishna

Gopal & Anr., (1988) 4 SCC 302, in the following words : “24.  It  is  trite  that  where the eye-witnesses’  account  is found credible and trustworthy, medical-opinion pointing to alternative possibilities is not  accepted as conclusive. Witnesses,  as  Bentham said,  are  the  eyes and ears  of justice. Hence the importance and primacy of the orality of the trial-process. Eye-witnesses’ account would require a careful independent assessment and evaluation for their credibility  which  should  not  be  adversely  prejudged making any other evidence, including medical-evidence, as the sole  touch-stone 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  credit-worthy; 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

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cumulative evaluation.”

15. But looking at the post-mortem report, cause of injuries was

not  stated  nor  was  any  opinion  formed  to  create  independent

testimony. We would like to emphasize on the vital role played by

opinion of the expert which is simply a conclusion drawn from a

set  of  facts  coming  to  his  knowledge  and  observation.  Expert’s

opinion  should  be  demonstrative  and  should  be  supported  by

convincing reasons. Court cannot be expected to surrender its own

judgment  and delegate  its  authority  to  a  third  person,  however

great. If the report of an expert is slipshod, inadequate or cryptic

and information on similarities or dissimilarities is not available in

the  report  of  an  expert  then  his  opinion  is  of  no  value.  Such

opinions are often of  no use to the court  and often lead to the

breaking of very important links of prosecution evidence which are

led  for  the  purpose  of  prosecution.  Therefore,  we  are  of  the

considered opinion that the prosecution has failed to prove that

death was caused due to the injuries  inflicted by the  recovered

weapons.

Furthermore, looking at the facts and circumstances of this case,

we  have  noticed  that  PW-3 the  eye-witness  to  the  incident  has

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neither stated as to when the accused came with alleged weapons

nor he extended any help to the deceased.  Rather he fled away

from the spot as per his deposition, and came to know about the

death of the deceased in the evening. This peculiar fact of the case

completely over-rides the direct evidence rule, because ultimately

probabilities  creating  doubts  with  respect  to  the  cause  and

modus-operandi of offence increases when alleged eye-witness flee

away from the place of occurrence. Where the medical evidence is

such that it  does not give any clear opinion with respect to the

injuries inflicted on the body of victim or deceased, as the case may

be, the possibilities that the injuries might have been caused by

the accused are also ruled out.  Such medical evidence is also very

important  in  assessing  the  testimony  of  eye-witnesses  and  in

determining whether the testimony of eye-witnesses can be safely

accepted. Moreover, it is settled law of criminal jurisprudence as

has been recognized by this Court in  State of U.P. Vs. Krishna

Gopal, (supra) that “A person has, no doubt, a profound right not to

be convicted of an offence which is not established by the evidential

standard  of  proof  beyond  reasonable  doubt.”  After  meticulously

scrutinizing the facts and circumstances of the present case, and

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keeping  in  mind  the  proposition  of  law  as  observed  in  Yogesh

Singh  Vs.  Mahabeer  Singh  &  Ors. (supra),  we  are  of  the

considered opinion that there are not only actual but substantial

doubts as to the guilt of the respondents herein. We are, therefore,

unable to find any evidence as to how the deceased was killed and

by  whom.  The  unfortunate  man succumbed to  injuries  but  the

substantial  doubts,  mentioned  above,  confer  a  right  upon  the

accused-respondents to be held not guilty.

17. Thus, we see no reason to interfere with the findings of the

High  Court  as,  in  our  opinion,  the  High  Court  after  correct

appreciation  of  evidence  has  rightly  acquitted  the

accused-respondents, giving them benefit of doubt. This appeal is

devoid of  any merit which is, accordingly, dismissed.   

. . . . . . . . . . . . . . . . . . . . .J (Pinaki Chandra Ghose)

. . . . . . . . . . . . . . . . . . . . .J (Rohinton Fali Nariman)

New Delhi; April 19, 2017.