Shiv Charan vs State of M.P.

S.L. Kochar, J.—The Appellant has filed this appeal against the judgment dated 19.3.2009 passed by the learned Second Additional Sessions Judge, (FTC) Biaora District Rajgarh, in S.T. No. 182/2007 whereby Appellant Shiv Charan has been convicted u/s 341 IPC and sentenced to undergo imprisonment for one month and u/s 506-B with one years rigorous imprisonment and u/s 302 IPC imprisonment for life, it is directed that the sentences to run concurrently.

According to the prosecution case on 17.8.2007 in the evening at 5 P.M. deceased Ramprasad was returning back to his house with bullock from his field and when he reached on the road, he was belaboured by six accused having lathi and farsi. Ramprasad sustained injury on head, abdomen and left hand. Incident was witnessed by several witnesses out of which P.W. 6 Kesarbai who is wife of the deceased who lodged the Dehati Nalishi recorded by the concerned Police Deceased was admitted in the Hospital and examined by P.W. 4 Dr. Sharad Sahu who also issued MLC Report Ex.P/6 Deceased remained Hospitalised for about 9 days and died. On receiving information, the Police reached in the Hospital and prepared Inquest Report and sent the dead body for Post Mortem Examination which was conducted by P.W. 11 Dr. Anil Garg. Post Mortem is Ex.P/13. Investigating Officer arrested the accused persons and on their disclosure statement, seized the weapons, and he had also recorded the statements of the witnesses who were acquainted with the facts of the case. On completion of investigation, charge sheet was filed against six accused including the Appellant for commission of offence u/s 148, 302/149, 341, 294 and 506B of the IPC.

The accused persons refuted the charges and pleaded innocence, therefore, put to trial. They have not examined any witness in defence. Learned Trial Court while acquitting other five accused convicted and sentenced the Appellant as noted hereinabove.

We have heard the learned Counsel for the parties and also perused the entire record of the Trial Court carefully.

It is clear from the record that conviction of the Appellant is based on solitary testimony of P.W. 6 Kesarbai wife of the Appellant who was declared hostile by the prosecution because she had not named four accused in her Court statement and deposed only against Appellant and acquitted co-accused Motilal. Motilal has been acquitted because his over act as described by Kesarbai that he caused injury on private part of the deceased by lathi wrapped with iron wire at its top, is not corroborated by medical evidence.

The moot question for us to decide here is the solitary testimony of Kesarbai against the Appellant is sufficient to base conviction or not ?

Kesarbai has stated that Appellant gave a blow by farsi on head and Motilal struck a lathi on private part of the deceased because of which deceased fell and became unconscious. She was declared hostile and confronted with her case diary statement as well as first information report by the prosecutor wherein she has refused to name the acquitted four accused.

The learned Trial Court has disbelieved the statement of Kesaibai against co-accused Motilal because no injury was found by Doctor on private part of Motilal.

P.W. 4 Dr. Sharad Sahu on external examination of deceased noted one swelling on left elbow joint, one abrasion on right thigh and acute abdominal pain. He advised for X-Ray of skull, elbow joint and abdomen. He has no where mentioned in his Report Ex.P/6 about presence of any external injury of any kind on the head of deceased. In Court statement also he has not deposed about presence of any external injury on the head of the deceased, whereas P.W. 8 Dr. Smt. Kelu Girwal found one abrasion on chest, one surgical stitched wound on left hand and there was separation of radius bone from elbow joint and abrasion on scapula region and on right tempro parietal region there was surgical stitched wound. On internal examination she found sub dural and sub arachnoid haemorrhage and in her opinion deceased died because of Cardio Respiratory Failure on account of several injuries found on the person of deceased and their complications. In the opinion of Smt. Kelu, the injuries could be caused by hard and blunt object.

Dr. Sahu and Dr. Kelu both had not found any external/internal injuries caused by any sharp edged weapon. Farsi seized from the possession of the Appellant was not shown to them in the Court. It is not the prosecution case that Appellant used the farsi from its blunt side, therefore, it can be presumed that farsi was used for which it is meant and it is a sharp edged heavy object but no external injury found by both the Doctors on skull of the deceased caused by sharp and hard object like farsi. In this view of the matter, there is a direct conflict between medical evidence and ocular account given by solitary eye-witness wife of the deceased Kesarbai. Supreme Court in case of Thaman Kumar Vs. State of Union Territory of Chandigarh, has held, about appreciation of conflicting evidence of Doctor with eye-witness/witnesses account, as under:

The conflict between oral testimony and medical evidence can be of varied dimensions and shapes. There may be a case where there is total absence of injuries which are normally caused by a particular weapon. There is another category where though the injuries found on the victim are of the type which are possible by the weapon of assault, but the size and dimension of the injuries do not exactly tally with the size and dimension of the weapon. The third category can be where the injuries found on the victim are such which are normally caused by the weapon of assault but they are not found on that portion of the body where they are deposed to have been caused by the eyewitnesses. The same kind of inference cannot be drawn in the three categories of apparent conflict in oral and medical evidence enumerated above. In the first category it may legitimately be inferred that the oral evidence regarding assault having been made from a particular weapon is not truthful. However, in the second and third categories no such inference can straight away be drawn. The manner and method of assault, the position of the victim, the resistance offered by him, the opportunity available to the witnesses to see the occurrence like their distance, presence of light and many other similar factors will have to be taken into consideration in judging the reliability of ocular testimony.

In view of the aforesaid Supreme Court dicta, the Appellant is entitled to get benefit because there is total absence of injury which can be normally caused by a weapon i.e. farsi. Farsi is a sharp edged weapon and if sharp side was used, the deceased could have sustained incised wound but no such incised injury was found on his person.

In view of the above, we are of the opinion, that solitary testimony of wife of the deceased is not sufficient to base conviction of the Appellant, therefore, this appeal is allowed. Conviction and sentence of the Appellant as passed by Trial Court are, hereby, set-aside and the Trial Court is directed to release the Appellant forthwith if not wanted in any other case.

Office is directed to send the copy of the judgment along with the record immediately to the Trial Court.