Md. Arshad & Ors. vs The State Of Bihar

(Per: HONOURABLE MR. JUSTICE ANIL KUMAR SINHA)

The present appeal has been preferred against the judgment of conviction and the order of sentence, dated 13.09.2004, passed by learned Additional Sessions Judge, Fast Track Court No. IV, Nawada, in Sessions Trial No. 139 of 1999/37 of 2004, arising out of Mufassil Police Station Case No. 38 of 1999, whereby the appellants were convicted for the offences punishable under Sections 302 read with Section 149 of the Indian Penal Code. Pursuant to their conviction, the appellants were sentenced to undergo rigorous imprisonment for life, and a fine of Rs. 5000/- each, and in default of payment of fine, the appellants were further directed to undergo simple imprisonment for one year.

The entire occurrence took place in two part. In the first part, the informant (PW 10) disclosed that on 02.05.1999, at about 3 PM, his co-villager, Md. Rajan @ Feku, came at the door of his brother, Md. Nehal, and started abusing and on hearing the abuses, his brother, Md. Nehal, came out of the house and prevented Md. Rajan from abusing, whereupon scuffle took place between them. On hearing hulla, Md. Arshad (having a knife in his hand), Md. Iqbal (having a sword in his hand) and Md. Aftab (having a lathi in his hand), came near the house of Md. Nehal and started assaulting him. Thereafter, the informant pacified the quarrel and locked his brother inside the house, upon which, the accused persons started damaging the tiled roof (khaprail) of the house of Md. Nehal.

In the second part, the informant revealed that his brother, Md. Nehal, came out of the house and went towards the police station to lodge a case, who was followed by the informant PW 10) and his mother (PW 4). When they reached near the southern side of village Jagi Chak, he saw Md. Rajan @ Feku, armed with a lathi, Md. Arshad, armed with a dagger, Md. Iqbal, armed with a sword, Md. Aftab, armed with a lathi in his hand, Md. Mehtab, armed with a bhala, Md. Murshid @ Shamim, armed with a saif (a double edged sharp cutting weapon), and Md. Irshad, armed with a knife, chased his brother, Md. Nehal.

According to the informant, Mf. Aftab and Md. Rajan caught hold his brother and both of them exhorted others to kill him, upon which, Md. Arshad gave a knife blow upon the head of Md. Nehal, Md. Murshid inflicted a saif blow on the right eye of Md. Nehal, Md. Iqbal inflicted a sword blow on the head of Md. Nehal, due to which his brother, Md. Nehal, sustained injuries and fell on the ground. Md. Mehtab and Md. Irshad also assaulted Md. Nehal by means of bhala and knife.

The informant further disclosed that when his mother, Taiba Khatoon (PW 4), tried to rescue Md. Nehal, Md. Aftab and Md. Rajan assaulted her by lathis. With the help of other persons, the informant took Md. Nehal to Sadar Hospital, Nawada, for treatment, where, during the treatment, he succumbed to the injuries.

The informant further stated that the occurrence was witnessed by Ameen Miya, Mohammed Najmi, Mohammed Naseem, Mohammed Bihari of his village, Bundi Chaudhary of village Jagi Chak, and other persons. He further stated that the accused persons had also assaulted Md. Najmi, when he attempted to rescue Md. Nehal.

On the basis of the aforesaid written report, Mufassil Police Station Case No. 38 of 1999, dated 02.05.1999, was registered against the accused persons for the offences punishable under Sections 147/148/149/323/324/302 of the Indian Penal Code.

Upon completion of the investigation, charge sheet no. 50 of 1999 was submitted by the police on 26.06.1999 against the appellant under Sections 147/148/149/323/324/302 of the Indian Penal Code. Thereafter, on 05.07.1999, cognizance of the offences was taken by the learned Chief Judicial Magistrate and on 28.07.1999, the case record was transmitted to the Court of Sessions.

On 27.08.1999, the learned Trial Court framed charges against the appellants under Sections 302 read with Section 149 of the Indian Penal Code. The charges were read over and explained to the appellants, to which they pleaded not guilty and claimed to be tried.

The prosecution, in order to substantiate its case, has examined twelve witnesses and exhibited some documents on its behalf. List of prosecution witnesses and exhibits are being mentioned hereunder in tabular form:-

The defence has also examined one formal witness, namely, Baleshwar Prasad Yadav (DW 1), who has proved the handwriting and signature of Sanatan Tuddu, A. S. I., which has been marked as Exhibit A.

After closure of the prosecution evidence, the statement of the appellants were recorded under Section 313 of the Code of Criminal Procedure on 25.11.2002, in which the appellants denied all incriminating circumstances appearing against him in the prosecution evidence and claimed their innocence.

Learned Counsel for the appellants, at the very outset, submitted that the judgment of conviction is against the weight of evidence and has been rendered on mere presumption of guilt. It is contended that the prosecution has failed to prove its case beyond reasonable doubt inasmuch as the testimonies of the prosecution witnesses suffer from material contradictions and inconsistencies inasmuch as the learned Trial Court failed to properly appreciate the evidence available on record and recorded the conviction without considering the material circumstances emerging from the prosecution evidence itself.

Learned Counsel further submits that the prosecution has failed to establish the place of occurrence by cogent, consistent and reliable evidence. It is submitted that though the prosecution alleges that the occurrence had taken place at the place in question, the Investigating Officer did not find any blood or any other incriminating material at the alleged place of occurrence and, significantly, no seizure was made. It is further contended that the medical evidence does not support the prosecution case with regard to the time and place of occurrence and thus, creates a serious doubt in respect thereof. In the absence of any objective or scientific material corroborating the alleged place of occurrence, coupled with the inconsistency between the ocular and medical evidence, the prosecution has failed to establish the place as well as the manner of occurrence beyond all reasonable doubt.

It is next submitted that the prosecution witnesses have given materially divergent versions with regard to the manner and sequence of the occurrence and the evidence on record indicates existence of two separate occurrences. Learned Counsel contends that the first occurrence, which goes to the root of the prosecution case and constitutes the genesis of the subsequent occurrence, has deliberately been suppressed and has not been brought before the learned trial Court in its true perspective. It is urged that the earliest version of the occurrence has thus been withheld and, in its place, an improved and subsequent version has been projected before the Court. Learned Counsel further submits that even during examination of the appellants under Section 313 of the Code of Criminal Procedure, no specific question was put to them with regard to the first occurrence or the material circumstances arising therefrom. It is, therefore, contended that the appellants were denied a fair and effective opportunity to explain the circumstances sought to be used against them and the prosecution cannot derive advantage from such circumstances which were never specifically put to the appellants.

It is further contended that the genesis of the occurrence has not been established by the prosecution. The Investigating Officer, who has admitted that the tiles at the alleged place of occurrence were found broken; however, despite noticing the same, the Investigating Officer did not seized the broken tiles, the failure of the investigating agency to collect and preserve such material evidence, when considered along with the suppression of the first occurrence, the material contradictions in the testimony of the prosecution witnesses and the complete absence of blood or any other incriminating material at the alleged place of occurrence, renders the prosecution version highly doubtful. It is thus urged that the prosecution has failed to place before the Court the true genesis of the occurrence and has withheld material circumstances which were essential for proper adjudication of the case.

Lastly, learned Counsel submits that the investigation suffers from serious lapses and non-compliance with the applicable provisions of the Bihar Police Manual, including Rule 116-A, causing serious prejudice to the appellants.

In view of the aforesaid facts and circumstances, it is submitted that the impugned judgment of conviction is fit to be set aside as the prosecution has miserably failed to prove its case beyond reasonable doubts, and on this basis, the appellants are entitled to be given at least benefit of doubt.

In support of his arguments, leaned Counsel placed reliance upon the decisions of the Supreme Court, in the cases of Dilawar Hussain and Others v. State of Gujarat and Another (AIR 1991 SC 56), Sharad Briduchand Sarda v. State of Maharashtra, reported in 1984 (4) SCC 116.

Per contra, learned Additional Public Prosecutor submitted that the judgment of conviction and order of sentence under challenge require no interference as the prosecution has been able to prove the case beyond all reasonable doubts. It has been submitted that the prosecution witnesses have remained consistent in the testimony during the course of trial and there does not remain any lacuna in the case of the prosecution. The minor inconsistencies in the testimony of the witnesses cannot be a ground to reject their evidence as a whole.

It is further submitted that the testimony of the witnesses stands corroborated in material particulars by the prosecution evidence and the offences alleged against the appellant appears to be serious in nature inasmuch as the prosecution witnesses examined have duly supported its case.

Learned Additional Public Prosecutor finally argued that guilt of the appellant has been satisfactorily proved by the evidence adduced during the course of trial and there is no infirmity in the judgment of conviction of the learned trial Court.

While considering the present appeal, I would like to re-appreciate the ocular witnesses adduced on behalf of the prosecution.

Out of the 12 witnesses examined by the prosecution, PW 4 Taiba (mother of the deceased), PW 5 Md. Najme one of the injured and niece of the deceased) and PW 10 (informant of this case and brother of the deceased) are the ones, who have supported the case of the prosecution by implicating the appellants aforementioned in the alleged killing of Md. Nehal.

As far as PW 2 (Md. Nasim) and PW 6 (Bundi Chaudhary) are concerned, they were declared hostile and nothing could be, admittedly, elicited from their cross-examination by the prosecution, which could be said to have supported the case of the prosecution.

As far as PW 1 (Bihari Miyan), PW 3 (Md. Kudus) and PW 7 (Jinat Khatoon) are concerned, their evidence were, admittedly, nothing, but hearsay to the alleged killing of Md. Nehal and have to be, therefore, kept excluded from the purview of this Court’s consideration.

As regards PW 12 (Sanjeev Kumar), he is a formal witness, who has proved the signature of the informant on the protest petition.

So far as PW 8 (Dr. Bimal Prasad Singh) is concerned, he is the doctor who had conducted post mortem examination on the dead body of Md. Nehal. PW 9 (Dr. Arvind Kumar) is the doctor, who had examined the injured Md. Najme (PW 5) and PW11 Jai Prakash Narayan is the Investigating Officer of this case.

While considering the present appeal, it needs to be noted that PWs 4, 5 and 10, who have claimed to be eyewitnesses, are all related to the deceased. Merely because of the fact that witnesses are related to each other, their relationship with the deceased cannot by itself make their evidence unreliable. Nonetheless, since the witnesses were related to each other, their evidence ought to have been scrutinized with far greater degree of care than what is, ordinarily, done.

The mere relationship is not and cannot be a ground to reject the testimony of the eyewitnesses, the fact remains that the admitted evidence on record shows that around the second place of occurrence, many other independent persons were present and though none of them might have seen the genesis of the occurrence or the alleged assault on victims, it is curious to note that none of independent witnesses has been examined to show that an occurrence of assault had taken place and that the deceased had succumbed to the injuries at the place of occurrence and/or that the witness, who had claimed to have sustained injuries, were found injured at the place of occurrence.

In the backdrop of the fact that the eyewitnesses’ account of occurrence, given in the present case, does not get support from any independent evidence, it was incumbent, on the part of the learned trial Court, to scrutinize the evidence on record with greater degree of care and not to rely on their evidence merely because they have corroborated the testimony of each other. Contrary to this principle of law as regards the appreciation of evidence by the eye-witnesses, who corroborate each other, the learned trial Court has proceeded to rely on the evidence of the eyewitnesses on the ground that they have all corroborated each other’s evidence.

It is trite that it is not the number of witnesses, which shall determine the outcome of a trial; rather, it is the quality of their evidence, which shall determine the guilt or otherwise of an accused facing trial.

In the present case, therefore, it is the duty of this Court, as the Court of appeal, to meticulously examine the evidence on record to ensure that the prosecution witnesses have not given evidence implicating a person, who might have been innocent or implicating an innocent with some guilty ones.

Bearing in mind what has been indicated above, I come to the evidence of PW 8 (Dr. Bimal Prasad Singh) is the doctor and had conducted post-mortem examination on the dead body of deceased Mohammad Nehal. In his examination-in-chief, he deposed that at the time of the post-mortem, the deceased was of thick build, rigor mortis was present all over the body and there was no sign of decomposition.

On examination, PW 8 found the following ante-mortem injuries on the body of the deceased:

This witness (PW 8) has opined the time elapsed since death between six and thirty-six hours and has also opined about the cause of death to be shock due to injury to scalp (vertex) by sharp object, causing intracranial haematoma. He further deposed that injury no. (i) was possible by chhura. This witness has further opined that the injuries found on the body of the deceased were sufficient, in ordinary course of nature, to cause death.

In cross-examination, this witness (PW 8) had deposed that during the summer season, rigor mortis starts just after two hours after death, and after six hours in summer season, rigor mortis is completed and start vanishing in 24 hours in summer season. He further deposed that the death may have been caused within 24 to 36 hours.

This witness (PW 8) had further deposed that chura is pointed as well as sharp cutting weapon and churra blows do not always cut penetrating wound. He further pointed out that injury no. (ii) is not the effect of injury no. (i). This witness (PW 8) had further admitted that he had not mentioned the angle of injury no. (i) and he examined the injury by naked eye. He further deposed that the injury nos. (iii) to (ix) may be possible by fall and injury no. (i) may be caused by heavy lethal weapon as well as small weapon. He further deposed that injury no. (i) is not possible by sharp edged stone.

This witness (PW 8) further denied the suggestion that injury no. (i) is not possible by chhura (knife).

So far as PW-9 (Dr. Arvind Kumar) is concerned, he is the doctor who medically examined the injured Md. Nazme (PW5). In his examination-in-chief, he deposed that on examination, he found the following injuries on the person of Md. Nazme (PW 5) :-

This witness (PW 9) had opined that all the injuries were simple in nature, caused by hard and blunt substance, and were within six hours of examination.

In cross-examination, this witness (PW 9) had deposed that lathi blow may cause ecomosis, when lathi blow is given, it may not cause blood clotting always. He further deposed that simple injury may be manufactured if the person concerned is ready to bear the pain.

Now, coming to the other alleged eye-witnesses to the occurrence.

PW 4 (Taiba) is the mother of the deceased and she claimed to be an eyewitness to the first and second part of the occurrence. In her examination-in-chief, she deposed that Aftab, Mehtab, Rajan, Iqbal, Arshad, Irshad and Murshid came to her house and started abusing. Thereafter they damaged the tiled roof of the house. She further deposed that when she and her deceased son, Nehal, were going to the police station for lodging a case, and reached near the Aahar at Jaggi Chowk, all the seven accused persons caught Nehal and Arshad assaulted him with a knife on his head, Iqbal struck him with a sword, Mehtab assaulted him with a bhala, due to which the deceased fell down and thereafter Murshid assaulted him with a saif, due to which the deceased sustained injury in his eye. Rajan and Aftab assaulted Nehal with lathis. According to this witness (PW 4), all the accused persons jointly assaulted Nehal, who succumbed to his injuries while being taken to the hospital. This witness (PW 4) was also assaulted by lathis. Najme was also being assaulted with sword by Iqbal and by means of lathi by Rajan.

In her cross-examination, PW 4 had deposed that no assault had taken place at the house of the deceased; rather, only scuffle took place there. This witness (PW 4) denied that she had stated before the police that the accused persons were armed with swords, knife etc., and Nehal was assaulted at the house or that Nehal was going to the police station to lodge a case after the occurrence of mar-pit. This witness (PW 4) had deposed that she disclosed before the Police that Arshad assaulted Nehal in the head with a knife, Iqbal assaulted him with a sword, Mehtab assaulted him with a spear (bhala), Murshid assaulted him with a saif and Rajan and Mehtab assaulted him with lathis.

To the court question, this witness (PW 4) had answered that she did not undergo any medical treatment for her injury as she was overwhelmed by the grief caused by the death of her son, but Najme got his treatment done. To another question, this witness (PW 4) answered that Najme was assaulted by sword only, due to which he sustained a cut injury, which was stitched. This witness (PW 4) further deposed that three persons assaulted Najme and Rajan and Mehtab assaulted him with lathis.

This witness (PW 4) further deposed that blood had fallen at Jaggi Chowk and that both Nehal and Najme had bled at the same place. According to her, the Police seized the blood-stained clothes of the deceased and soil from the place of occurrence.

This witness (PW 4) denied the suggestion that the enemies had killed her son and threw his dead body and the convicts had been falsely implicated. She also denied that the convicts were innocent.

PW 5 (Md. Najme), in his examination-in-chief, had deposed that on 02.05.1999 at about 3 PM, while he was in his house, on hearing noise, he reached near the house of Nehal and saw seven accused persons, Md. Iqbal was armed with a sword, Md. Arshad and Md. Irshad were carrying a knives, Md. Aftab was having a lathi, Md. Mehtab was having a bhala and Md. Murshid was armed with a saif and they were abusing Nehal. This witnes pacified the matter and put Nehal inside the house. Thereafter, the accused persons started damaging the tiled roof (khapra) of the house of Nehal, upon which Nehal, along with this witness, his mother and one Md. Kamal went to the police station to lodge a case and when they reached near Jaggi chak chak, this witness found that accused persons were already present there from before.

This witness (PW 5) further deposed that Rajan and Aftab caught Nehal, Md. Arshad assaulted Nehal in his head with knife and other persons also assaulted Nehal with the weapons they were carrying. This witness (PW 5) further deposed that Bundi Choudhary and Ashok Choudhary also reached there. When this witness along with the mother of Nehal went to rescue, Iqbal assaulted this witness by sword in his head, Aftab assaulted him by means of lathi in his shoulder and Rajan assaulted him by means of lathi on his head.

In his cross-examination, PW 5 admitted that the deceased was his uncle and he was not an accused in any criminal case and specifically denied that he was an accused in a case for firing at the Police or that any case was pending against him in connection with the alleged loot in the house of Bundel Choudhary. He further deposed that he had no dispute with anyone.

PW-5 further deposed that he had noticed twelve to thirteen injuries on the body of Nehal Miyan. According to him, there were two knife injuries on the head, one sword injury on the head, one saif injury on the right side, one injury in the middle of the head and one on the left side. He, however, admitted that he could not depose the exact place where the saif injury had been inflicted. He further stated that Nehal was struck once near the eye but could not specify the exact number of spear blows. According to him, the deceased was also struck with a spear on the elbow. He was unable to state the number of lathi blows or the specific parts of the body where such blows were inflicted, though he stated that lathi blows were inflicted on the chest and stomach and that there were injury marks on the face.

PW 5 further admitted that he was standing close to Nehal and was attempting to protect him during the assault. He denied the suggestion that he had not stated before the police that, out of fear of the accused persons, he had remained hidden in the village and had come out only after the accused had fled. He maintained that he had stated before the police that Bundi Choudhary and Ashok Choudhary had come to rescue the deceased and that Taiba Khatoon had also been assaulted while attempting to save her son. He further deposed that Jaggi Chowk was a locality where about 50 to 60 persons of the village reside, but no one came.

PW-5 further deposed that he too had sustained injuries while attempting to save Nehal Miyan. According to him, blood from the body of the deceased had fallen at the place of occurrence and a few drops of his own blood had also fallen there. He stated that the blood of the deceased had spread within an area of about one and a half yards. He further deposed that at the time of the occurrence, Nehal was not wearing a shirt and was dressed only in a lungi and gamcha. Although he could not say whether the lungi and gamcha were soaked with blood, he stated that some blood had fallen on his own ganji, which he had shown to the Police. This witness further deposed that he had sustained injuries on both his eyebrows but could not say as to who had caused those injuries near his eyes.

PW-5 denied the suggestion that Nehal had several enemies and that some unknown persons had killed him and thrown his body and the present accused persons had been falsely implicated. He also denied the suggestion that being the nephew of the deceased, he was deposing falsely out of animosity against the accused persons.

PW-10 (Mohammad Kamal) is the informant of the case and the brother of the deceased. In his examination-in-chief, he deposed that while he was present in the house of his brother, Nehal. According to him, accused Md. Rajan, came there with a lathi and started abusing Nehal. When Nehal objected, Md. Aftab, armed with a lathi, Md. Iqbal, armed with a sword, Md. Arshad, armed with a knife, Md. Irshad, with a knife, Md. Murshid @ Shamim, with a saif, and Md. Mehtab, with a bhala, arrived there. According to this witness, all the aforesaid seven persons jointly assaulted Nehal by fists and slaps. This witness further deposed that he and other persons present rescued Nehal and took him inside the house. Thereafter, the accused persons started damaging the tiled roof (khapra) of the house. According to him, Nehal Miyan then stated that the accused persons would not listen and that they should go to the police station to lodge a case. Thereafter, the informant, his mother and Nehal set out for the police station.

This witness (PW 10) further deposed that when they reached near Jaggi Chak, all the seven accused persons came running from behind and Rajan and Aftab caught Nehal and exhorted to kill him, upon which Md. Arshad gave a knife blow on the head of Nehal, Iqbal gave a sword blow on the head of Neha, Murshid gave a saif blow on the right eye of Nehal, Aftab and Rajan thereafter assaulted Nehal by means of lathis, Mehtab assaulted him with a bhala, which hit the left toe of the deceased, and Irshad assaulted him with a knife, causing injury to his right elbow. This witness (PW 10) further deposed that when his mother (PW 4) attempted to save Nehal, Aftab and Rajan assaulted her with two lathi blows. He further stated that when Nazme (PW 5) came to save the deceased, Iqbal assaulted him on his head with a sword.

In his cross-examination, this witness (PW 10) further deposed that at the time of the initial occurrence inside the house, only he, his mother, Mohammad Nazim and Jinat Khatoon were present, while the children were not in the house. He admitted that he could not say whether the members of those neighbouring houses were present at the relevant time. This witness (PW 10) had deposed that Rajan started abusing Nehal in the afternoon but he did not remember the exact words used. According to him, Naseem, Bihari Miyan and Md. Kudus had reached the place even before Nehal came out of the house. He stated that he came out along with Nehal.

PW-10 further deposed that all the seven accused persons remained outside the house and did not enter inside. According to him, Rajan and Aftab started damaging the tiled roof (khapra) while the remaining accused stood there. The tiled roof was broken with lathis and about 50 to 60 tiles fell into the verandah. He further deposed that none of the accused stopped them at the entrance of the house and they all walked towards Jaggi Chowk situated to the west, while the accused persons followed behind them.

PW-10 further deposed that the knife blow landed in the middle of the forehead and blood immediately started oozing out of the head of the deceased. He further stated that thereafter both Iqbal and Arshad assaulted Nehal and, after those blows, he fell down. According to him, Iqbal struck the deceased with a sword causing a cut about one finger deep in the middle of the head. He further deposed that blood was oozing out of head, right elbow and right eye of the deceased and there were injuries all over his body. According to this witness, Bundi Choudhary and Ashok Choudhary arrived only after the assault had been completed and no other person came there.

PW-10 denied the defence suggestion that accused Aftab's right arm was permanently disabled. He stated that although Aftab had earlier sustained a fracture while working as a truck cleaner/helper, the injury had healed. He further stated that the wife of the deceased had not remarried. Finally, he denied the defence suggestion that Nehal was a man of criminal antecedents who had been killed elsewhere and the present accused persons had been falsely implicated. He also denied that he was deposing falsely.

PW-11 (Jai Prakash Narayan) is the Investigating Officer of the case. In his examination-in-chief, he deposed that on 02.05.1999, while posted as a Sub-Inspector at Mufassil Police Station, Nawada, at about 4:35 PM, he received an information that a person had died in the Sadar Hospital, Nawada. Upon receiving the said information, he proceeded to the Sadar Hospital, Nawada. Upon reaching the hospital, he recorded the fardbeyan of the informant, Md. Kamal (PW-10). He further deposed that during investigation, he recorded the statements of the informant, Md. Nazme (PW-5) and other witnesses. He further deposed that he prepared the inquest report, put his signature over the report and also obtained the signatures of the witnesses Amiruddin and Mohammad Kudus. He inspected the first place of occurrence and found that the front portion of the tiled roof (khapra/chhappar) of the house of the deceased had been broken. He also inspected the second place of occurrence.

PW 11 further deposed that witness Md. Nazme (PW 5) had made a statement before him on 25.09.1999 to the effect that, upon hearing noise while he was at his house, he went near the house of Md. Nehal and found a quarrel taking place between Nehal and accused Md. Rajan, Md. Arshad, Md. Iqbal, Md. Aftab, Md. Shamim and Md. Irshad, who were armed with lathis. According to the witness's statement, he thereafter learnt that Md. Rajan and his brothers had assaulted and injured Nehal, who subsequently died in the hospital. He further deposed that he did not seize any broken tiles.

While considering the present appeal, it needs to be noted that PW 4 Taiba, PW 5 Md. Najme and PW 10 Md. Kamal are the witnesses, who have supported the prosecution case and have implicated the appellants in the alleged killing of Md. Nehal. PW 4 is the mother of the deceased, PW 5 is his nephew and an alleged injured eyewitness and PW 10 is the informant and brother of the deceased. Thus, all these three witnesses relied upon by the prosecution are closely related to the deceased. Merely because the witnesses are related to the deceased, their evidence cannot, by that reason alone, be discarded. At the same time, their evidence has to be scrutinized with greater care and caution, particularly when the occurrence, as narrated by them, does not receive adequate support from the independent or medical evidence on record.

It is also required to be kept in mind that the evidence of PW 4, PW 5 and PW 10 is not required to be examined merely from the standpoint of whether they have supported one another. The question is whether their evidence, when tested against the medical evidence and the evidence of the Investigating Officer, inspires confidence and establishes the participation of each of the accused beyond reasonable doubt. It is the quality of evidence and not the number of witnesses which determines whether the prosecution has succeeded in proving its case.

Coming first to the medical evidence, PW 8, Dr. Bimal Prasad Singh, who conducted the post-mortem examination on the dead body of Md. Nehal, found seven external injuries. Injury no. (i) was an incised wound, measuring 3" × ½" × bone deep with cut bone at the vertex. Injury no. (ii) was generalized swelling over the right side of the face and scalp. Injury no. (iii) was a lacerated wound in the left intra-orbital region. Injury no. (iv) was swelling over the right arm. Injury no. (v) was a lacerated wound at the right elbow. Injury no. (vi) consisted of abrasions over the abdomen, chest, left hand and left forearm, while injury no. (vii) was a lacerated wound at the left great toe. On dissection, there was haematoma on the right side of the scalp, the outer table of the left parietal bone was cut and intracranial haematoma was found around the brain matter. The doctor opined that the cause of death was shock due to injury to the scalp at the vertex by a sharp object causing intracranial haematoma.

The medical evidence, therefore, establishes that Md. Nehal had suffered a fatal injury on the vertex by a sharp object. However, the medical evidence has to be examined in the light of the specific ocular version given by PW 4, PW 5 and PW 10, because these witnesses have not merely alleged a general assault but have attributed specific weapons and specific blows to different accused persons.

PW 4, in her evidence, attributed a knife blow on the head to Arshad, a sword blow to Iqbal, a spear blow to Mehtab, an assault with saif by Murshid and lathi blows by Rajan and Aftab. Thus, according to her, the deceased was subjected to assaults by several sharp-edged and blunt weapons. PW 10 has given substantially the same account and has attributed a knife blow to Arshad, a sword blow to Iqbal, a saif blow near the right eye, lathi blows by Rajan and Aftab, a bhala blow by Mehtab and a knife blow by Irshad on the right elbow.

If the description of the occurrence given by PW 4 and PW 10 is to be accepted in its entirety, one would expect the injuries found on the person of the deceased to correspond, at least in their broad nature, with the several sharp-edged weapons alleged to have been used, but the post-mortem examination does not disclose such a corresponding pattern of injuries. Apart from the incised wound at the vertex, the other injuries are described as lacerated wounds, swelling and abrasions. There is no punctured wound corresponding to the alleged bhala blow. There is also no second incised wound on the head corresponding to the separate knife and sword blows, which PW 10 specifically attributes to Arshad and Iqbal.

This aspect assumes greater importance when the evidence of the doctor is considered. PW-8, in cross-examination, has admitted that he had not mentioned the angle of injury no. (i), that the injury had been examined by him by naked eye and that injury no. (i) could be caused by a heavy lethal weapon as well as a small weapon. He further deposed that injury nos. (iii) to (ix) might be possible by fall. He also stated that injury no. (ii), namely swelling over the right side of the face and scalp, was not the effect of injury no. (i).

The evidence of the doctor (PW 8), therefore, does not corroborate the detailed attribution made by PW 4 and PW 10 as to the particular weapon used by each accused. The fatal injury is certainly compatible with an assault by a sharp weapon, but the medical evidence does not establish that the deceased had received the several distinct sharp weapon blows spoken of by the eyewitnesses. The absence of a corresponding punctured injury to support the alleged bhala assault and the absence of multiple incised wounds corresponding to the several alleged knife and sword blows cannot be overlooked.

The Supreme Court, in the case of Mahavir Singh v. State of Madhya Pradesh, reported in (2016) 10 SCC 220, has held that where medical evidence completely rules out the ocular version, the ocular evidence may be disbelieved.

PW-5, who claims to be an injured eyewitness, also gives description, which does not satisfactorily correspond with the medical evidence. He deposed that he had seen two knife injuries on the head of Nehal, one sword injury on the head, a saif injury near the right side of the eye, a spear injury on the elbow and other injuries caused by lathis. He further deposed that there was extensive bleeding and injuries had been caused all over the body. However, as discussed above, the post-mortem report records only one incised wound at the vertex, one lacerated wound in the left intra-orbital region, one lacerated wound at the right elbow, swelling and abrasions. The medical evidence, therefore, does not disclose the number and nature of injuries which would ordinarily be expected if the occurrence had taken place in the manner described by PW 5.

The discrepancy becomes still more significant when the ocular account is tested against the evidence of PW 11, the Investigating Officer. PW 10 deposed that immediately after the knife and sword blows, blood started oozing out of the head of Nehal and blood was also oozing out of his head, right elbow and right eye and there were injuries all over his body. PW 5 also deposed that blood of the deceased had fallen at the place of occurrence. However, PW-11 categorically deposed in cross-examination that he found no mark of the occurrence at the second place of occurrence, inasmuch as the ground was dry and he did not find any blood near the second place of occurrence.

The aforesaid circumstance cannot be brushed aside as a mere omission in investigation. The prosecution witnesses describe a violent assault upon the head and other parts of the body by knives, sword, saif, bhala and lathis and specifically speak of blood oozing out from the injuries and falling at the place of occurrence. Yet the Investigating Officer, who inspected the alleged second place of occurrence, found the ground dry and no blood whatsoever. The absence of such physical evidence, in the facts of the present case, creates a serious doubt regarding the manner and place of the alleged assault.

Close on the heels of the evidence of the prosecution witnesses regarding the drain dispute, the evidence of PW 11 becomes significant. The prosecution witnesses have referred to the dispute between the parties relating to the drain for a long time as the background of the occurrence, yet, the Investigating Officer candidly admitted that he did not investigate the said dispute. Thus, the very genesis of the occurrence, as projected by the prosecution witnesses, remained wholly unattended. Had the alleged drain dispute been the real cause of the occurrence, some objective material regarding the existence, location and physical features of the drain and its proximity to the houses of the parties ought to have emerged during investigation. The complete absence of such investigation, therefore, assumes significance and lends further uncertainty to the prosecution version regarding the genesis and manner of the occurrence.

The evidence of PW 11 regarding the movements of the accused persons during investigation also creates a further circumstance requiring consideration. PW 11 deposed that some witnesses had stated during investigation that while proceeding on the path, the accused persons were empty-handed. He further stated that it had come to light during investigation that the accused persons went towards America Bigha after the alleged assault and that the assault had taken place between Jakki Chak and America Bigha, which was about half a kilometre from the place of occurrence. This circumstance does not fit neatly with the detailed version of the eyewitnesses regarding the accused persons pursuing the deceased and continuously assaulting him with different weapons.

In the present case, the eyewitness account does not receive the necessary independent corroboration from the physical evidence collected at the place of occurrence. The position becomes more serious because the Investigating Officer himself found no blood at the alleged second place of occurrence.

The evidence of PW 5, though projected as that of an injured witness, does not by itself remove the doubt. The doctor found only three simple injuries on this person, i.e. two small lacerated wounds on the forehead and parietal eminence and swelling over the shoulder, all caused by hard and blunt substance. It is the consistent deposition of PW 4, PW 5 and PW 10 that the accused persons assaulted PW 5 by sword on his head, due to which he sustained cut injury. As such, the medical evidence belies the description of the assault made upon PW 5 at the hands of the accused persons.

What, therefore, emerges from the above discussion is that the ocular account furnished by PW 4, PW 5 and PW 10 is not supported by the medical evidence in respect of the several specific blows attributed to the appellants.

In the backdrop of the aforesaid facts, the ocular testimony of PW-4, PW-5 and PW-10 has also to be tested on the touchstone of their conduct at the time of and immediately after the occurrence. The conduct attributed to these witnesses does not appear to be consistent with the conduct which would ordinarily be expected from persons who had witnessed such a serious and brutal assault upon a close family member. Their conduct, as emerging from their own evidence, therefore, assumes significance in assessing the probability of their presence and the truthfulness of the manner in which they claim to have witnessed the occurrence. When the ocular testimony is not only confronted with the medical and physical evidence but is also found to be inconsistent with the natural conduct of the witnesses, their evidence cannot be accepted merely because they have corroborated one another. In such circumstances, the Court is required to examine whether the conduct of the witnesses lends assurance to their ocular version or, on the contrary, creates a reasonable doubt regarding the manner in which the occurrence is alleged to have taken place.

In the present case, the evidence adduced by the prosecution appears to be an admixture of truth and exaggeration. The homicidal death of Md. Nehal is established by the post-mortem examination, but the prosecution has failed to establish with the same degree of certainty the participation of each of the appellants in the manner alleged by PW 4, PW 5 and PW 10. The fatal injury on the vertex, by itself, cannot establish which of the accused caused it, particularly when different witnesses have attributed different weapons and blows to different accused persons and the medical evidence does not correspond with those individual attributions.

The Court is conscious of the fact that medical evidence is ordinarily corroborative and not substantive evidence of the occurrence. But in the present case the medical evidence assumes importance because the ocular witnesses have furnished a highly specific account of the nature and number of blows. When such a specific account is not borne out by the injuries found during post-mortem examination, and when the place where the assault is alleged to have taken place does not disclose any blood or other mark of occurrence, the discrepancy goes to the root of the prosecution case.

The cumulative effect of the aforesaid circumstances is that the prosecution has failed to present a wholly consistent and reliable account of the occurrence. The evidence of PW 4, PW 5 and PW 10 cannot be accepted in its entirety merely on the ground that they are eyewitnesses. Their relationship with the deceased, the material omissions proved by PW 11, the absence of blood at the alleged second place of occurrence, the failure to objectively establish the alleged damage to the roof and, above all, the absence of medical correspondence with the several specific weapon blows, together create a reasonable doubt regarding the participation of the appellants in the occurrence in the manner alleged.

What emerges from the above discussion is that the evidence adduced by the prosecution is an admixture of half-truth and exaggeration and, since the truth, if any, is so inextricably mixed with the doubtful portions of the prosecution version that it is not possible to safely disengage one from the other, the prosecution case becomes unsafe for recording conviction against the appellants. This is particularly so when the prosecution seeks to hold all the accused liable by attributing distinct overt acts to each of them. The principle that the Court must guard against implicating an innocent person along with the guilty assumes significance in such circumstances.

At any rate, in the light of the nature of the evidence available on record, the prosecution cannot be said to have proved its case against the appellants beyond reasonable doubt. The homicidal death of Md. Nehal is proved, but the prosecution has failed to establish beyond reasonable doubt that the appellants were the persons who, acting in furtherance of their common object, caused the fatal injuries in the manner alleged.

In the facts and attending circumstances of the present case, the appellants ought to have been accorded benefit of reasonable doubt inasmuch as the prosecution has failed, in the light of the discussion of the evidence on record, to bring home the charges against the appellants beyond all reasonable doubt.

In the result and for the foregoing reasons, this appeal is allowed. The impugned conviction of the appellants and the sentences passed against them by the judgment and order, under appeal, are hereby set aside. The appellants are held not guilty of the offence, which they stand convicted of, and they are hereby acquitted of the same under benefit of doubt.

Since the appellants are on bail, their bail bonds are hereby cancelled and their sureties shall stand discharged.

Registry shall, forthwith, send a copy of this judgment and order to the learned trial Court along with the Lower Court Records.