Page 1 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 24

th

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

Page 2 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

Page 3 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,

Page 4 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

Page 5 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.

Page 6 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

Page 7 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

Page 8 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.

Page 9 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

Page 10 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

Page 11 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

Page 12 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

Page 13 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.