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PETITIONER:

STATE OF HARYANA

Vs.

RESPONDENT:

BHAGIRATH AND OTHERS

DATE OF JUDGMENT: 12/05/1999

BENCH:

K.T.Thomas, D.P.Mohapatra

JUDGMENT:

Thomas J.

Every father is the best protector of his own children

that is the order of human nature. But there had been freaks in

the history of mankind when father became killer of his own

child. This case tells the story of such a freak when Subhram -

the 33 year old son of Bhagirath was butchered by cutting the

throat. As Subhram was congenitally blind perhaps the only

solace in the eerie episode seems to be that the victim would not

have had any idea of the physiognomy of his murderers. Bhagirath

and his two nephews (Hanuman and Kheta) were convicted by the

sessions court under Section 302 read with Section 34 of the

Indian Penal Code and the three were sentenced to imprisonment

for life. But the High Court, on appeal by the three accused,

acquitted Bhagirath and confirmed the conviction and sentence of

his two nephews. State of Haryana has filed this appeal by

special leave against the acquittal of Bhagirath.

Backdrop of the prosecution story is the following:

Bhagirath and his wife Jamna have a son Subhram and a

daughter (Naraini). Subhram though was born blind, was healthy

and active and remained a bachelor. Naraini was given in

marriage to a pedagogue in Rajasthan (PW8 Ram Sarup) and they

were living separately at village Rawana. Bhagirath and his

brother Kanharam together had 32 acres of ancestral property.

The other two accused (Hanuman and Kheta) are the sons of

Kanharam. In a family arrangement the share of Subhram in the

aforesaid 32 acres had been settled as 1/6th. Bhagirath and his

wife Jamna became estranged with each other long back, and they

were living separately. Subhram was residing with his mother

Jamna ever-since the separation and Bhagirath was residing in the

house along with his nephews Hanuman and Kheta.

Disputes arose between Subhram on the one side and

Bhagirath and his two nephews on the other side regarding

enjoyment of the land, perhaps the accused would have thought

that Subhram, being blind, might not get married and so on his

death the properties would revert back to the family. But at the

age of thirty three Subhram became desirous of married life and

negotiations were on the move for finding out a suitable match

for him. A couple of months prior to his murder Subhram executed

a mortgage of his share of the properties to PW10 Prabhati for a

sum of Rupees twenty two thousand. When Prabhati tried to

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cultivate the mortgaged land it was resisted and that led to

initiation of proceedings under Section 107 of the Code of

Criminal Procedure against the three accused as well as against

Subhram and Prabhati. In the meanwhile, Subhram filed a Civil

Suit for partition of his share in the properties by metes and

bounds. Thus, the situation became tense and the acrimony

reached its zenith.

The murder took place, according to the prosecution, at

about 12.30 noon on 8th August, 1987. Prosecution version is

thus:

Deceased Subhram set out to his sisters house. He

proceeded to the bus stop but he missed the bus as the stage

carriage had already moved off by the time he reached the bus

stop. He was told that the next bus would be at 2.30 pm. So he

went to a nearby house for whiling away the time in between. The

lady of the house (Harbai-PW4) was an old woman. She and Subhram

had a chat together for some time and then she withdrew to the

kitchen and thereafter Subhram slumped on a cot on the verandah

of that house. He might or might not have gone to siesta.

At about 12.30 noon his father Bhagirath along with

Hanuman and Kheta reached there. Bhagirath held a grip on the

legs of his son while Hanuman and Kheta whacked on his neck with

Kulhari (heavy sharp weapon for cutting purposes). Hearing the

sounds of death pangs of the victim, the two lady inmates of the

house (PW4 Harbai and her daughter-in-law PW6 Hirli) rushed out

of the culinary section. They were shellshocked by the sight of

the blind young man being slaughtered by the three assailants who

took to their heels after accomplishing the object. The hue and

cry made by the ladies brought attention of the men and women of

the entire neighbour-hood, and all rushed to the scene.

Deceaseds mother Jamna on hearing the saddest news in her life

dashed to the scene, but the sight of her blind sons head

remaining practically severed from the trunk had affected her

mental equilibrium and she suddenly swooned.

Sessions Court placed complete reliance on the evidence

of PW4 Harbai and her daughter-in-law PW5 Hirli and held the

three accused guilty under Section 302 read with Section 34 of

the IPC and convicted them and sentenced them as aforesaid.

A Division Bench of the High Court of Punjab and Haryana

concurred with the sessions court regarding the reliability of

evidence of the two eye witnesses and confirmed the conviction

and sentence passed on Hanuman and Kheta. But regarding

Bhagirath the Division Bench said like this:

"Although we find the testimony of Harbai and Hirli realiable

and trustworthy but as Bhagirath has not caused any injury we, as

a matter of abundant caution, give him benefit of doubt and

acquit him of the charge. The conviction and sentence of other

two are maintained."

The High Court has failed to consider the implication of

the evidence of the two eye witnesses on the complicity of

Bhagirath particularly when the High Court found their evidence

reliable. Benefit of doubt was given to Bhagirath as a matter

of abundant caution. Unfortunately, the High Court did not point

out the area where there is such a doubt. Any restraint by way

of abundant caution need not be entangled with the concept of

benefit of doubt. Abundant caution is always desirable in all

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spheres of human activities. But the principle of benefit of

doubt belongs exclusively to criminal jurisprudence. The

pristine doctrine of benefit of doubt can be invoked when there

is reasonable doubt regarding the guilt of the accused. It is

the reasonable doubt which a conscientious judicial mind

entertains on a conspectus of the entire evidence that the

accused might not have committed the offence, which affords

benefit to the accused at the end of the criminal trial. Benefit

of doubt is not a legal dosage to be administered at every

segment of the evidence, but an advantage to be afforded to the

accused at the final end after consideration of the entire

evidence, if the judge conscientiously and reasonably entertains

doubt regarding the guilt of the accused.

It is nearly impossible in any criminal trial to prove

all elements with scientific precision. A criminal court could

be convinced of the guilt only beyond the range of a reasonable

doubt. Of course, the expression reasonable doubt is incapable

of definition. Modern thinking is in favour of the view that

proof beyond a reasonable doubt is the same as proof which

affords moral certainty to the judge.

Francis Wharton, a celebrated writer on Criminal Law in

United States has quoted from judicial pronouncements in his book

on Whartons Criminal Evidence as follows (at page 31, volume 1

of the 12th Edition):

"It is difficult to define the phrase reasonable doubt.

However, in all criminal cases a careful explanation of the term

ought to be given. A definition often quoted or followed is that

given by Chief Justice Shaw in the Webster Case. He says: It

is not mere possible doubt, because everything relating to human

affairs and depending upon moral evidence is open to some

possible or imaginary doubt. It is that state of the case which,

after the entire comparison and consideration of all the

evidence, leaves the minds of the jurors in that consideration

that they cannot say they feel an abiding conviction to a moral

certainty of the truth of the charge."

In the treatise on The Law of Criminal Evidence

authored by HC Underhill it is stated ( at page 34, Volume 1 of

the Fifth Edition )thus:

"The doubt to be reasonable must be such a one as an honest,

sensible and fair-minded man might, with reason, entertain

consistent with a conscientious desire to ascertain the truth.

An honestly entertained doubt of guilt is a reasonable doubt. A

vague conjecture or an inference of the possibility of the

innocence of the accused is not a reasonable doubt. A reasonable

doubt is one which arises from a consideration of all the

evidence in a fair and reasonable way. There must be a candid

consideration of all the evidence and if, after this candid

consideration is had by the jurors, there remains in the minds a

conviction of the guilt of the accused, then there is no room for

a reasonable doubt."

In Shivaji Saheb Rao Bobade vs. State of Maharashtra

[1974 (1) SCR 489] this Court adopted the same approach to the

principle of benefit of doubt and struck a note of caution that

the dangers of exaggerated devotion to rule of benefit of doubt

at the expense of social defence demand special emphasis in the

contemporary context of escalating crime and escape. This Court

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further said:

"The judicial instrument has a public accountability. The

cherished principles or golden thread of proof beyond reasonable

doubt which runs through the web of our law should not be

stretched morbidly to embrace every hunch, hesitancy and degree

of doubt."

These are reiterated by this Court in Municipal

Corporation of Delhi vs. Ram Kishan Rohatgi [AIR 1983 SC 67].

Learned counsel for the respondent Bhagirath argued that

the injuries found in the post-mortem examination are not

consistent with the testimony of the eye-witnesses and,

therefore, a reasonable doubt would arise in that region. The

anti-mortem injuries found on the neck of the dead body of the

deceased, as described by Dr. Vijay Singh Yadav (PW7) is this:

"One incised wound on the right side of neck 4 cms from the

manubrium sterni. The wound started from the left side of the

neck, one cm from the midline and it was 14 cms long and 4½ cms

wide. There was transaction of all the viscera and bone at the

level of cervical vertebrae No.5. Only the skin left

downwards."

PW7 said in cross-examination that the said injury "is possibly

by a single blow by one weapon with some backward support and it

is not the result of two blows with two weapons. In

re-examination the doctor did not agree to the suggestion of the

Public Prosecutor that after one blow was inflicted with a

kulhari it is possible to cause the said injury if a second blow

is also inflicted by kulhari.

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, court is not

obliged to go by that opinion. After all opinion is what is

formed in the mind of a person regarding a fact situation. If

one doctor forms one opinion and another doctor forms a different

opinion on the same facts it is open to the judge to adopt the

view which is more objective or probable. Similarly if the

opinion given by one doctor is not consistent with probability

the court has no liability to go by that opinion merely because

it is said by the doctor. Of course, due weight must be given to

opinions given by persons who are experts in the particular

subject.

Looking at the width of the wound on the neck (4.5 cm) and its

length (14 cms) a doctor should not have ruled out the

possibility of two successive strikes with a sharp weapon falling

at the same situs resulting in such a wide incised wound. If the

doctor does not agree to the possibility of causing such a wound

the doctor should have put-forth cogent reasons in support of

such opinion. But PW7 did not give any such reason for the curt

answer given by him that such an injury could not have been

caused by two strikes with the same weapon or with different

weapons of the same type. We are, therefore, not persuaded to

entertain any doubt regarding prosecution version on that score.

We have absolutely no doubt that prosecution has proved with

reasonable certainty that Bhagirath was holding the legs of the

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deceased when his nephews cut his throat and after finishing

their work all the three ran away together. In the broad

spectrum of the occurrence there is no scope to entertain even a

semblance of doubt that Bhagirath would have shared the common

intention with the other two assailants. The Division Bench of

the High Court has grossly erred in absolving Bhagirath from the

crime on a misplaced doubt which, in fact, did not arise at all.

In the result, we allow this appeal and set aside the acquittal

of respondent Bhagirath and restore the conviction and sentence

passed on him by the trial court. We direct the Sessions Judge,

Narnaul(Haryana) to take prompt steps to put respondent Bhagirath

back in jail to undergo the remaining portion of the sentence.