Penal Code, 1860 – ss.299 and 304 Part-II r/w. s.34 – Conviction under – Propriety of – PW3 & PW4 were travelling in a Maruti Car driven by ‘GS’ – Dispute arose on the right of way between the accused persons (A-1 and A-2) and ‘GS’ – Allegedly, A-1 pulled ‘GS’ out of the vehicle and inflicted fist blows whereafter, he died while being taken to hospital – FIR registered u/ss.304/34 against A1 and un-named second accused – Trial court acquitted both the accused – High Court reversed the acquittal – Held: Medical evidence is absolutely uncertain regarding the cause of death of the deceased – The only fact established on evidence is that A-1 gave a single fist blow on the head of the deceased – No weapon was used, nor was there any past enmity between the accused and the deceased – There is no evidence of any concomitant brain injury – Post-mortem report is silent in this regard – Pathologist’s report is clear about the absence of any pathology in brain, however, he noticed a large number of abnormalities in the condition of the heart of the deceased – Such being the evidence on record, conclusion of High Court that death of deceased was caused by subdural hemorrhage but not cardiac arrest is not based on any evidence on record and is a pure conjecture – A-1 cannot be held to be responsible for causing the death of the deceased – Further, as far as A2 is considered, the FIR mentioned the name of only A1 and the second participant in the incident was said to be a “clean shaven man” and it did not mention that the clean shaven man either attacked or inflicted any injury on the body of the deceased – No material on record to indicate the basis on which the prosecution came to the conclusion that A-2 was that clean shaven man – Nothing on record to prove that he attacked the deceased or that he shared a common intention with A-1 to commit the offence of culpable homicide not amounting to murder– It is not safe to convict A-2 on the basis of the evidence of PWs 3 and 4, recorded some 7 years after the incident – Judgment of High Court insofar as A2 is concerned, is also set aside – Code of Criminal Procedure, 1973 – ss.173 and 319.
Evidence – Related witnesses – Appreciation of.
Allowing the appeals of the accused and dismissing that of the complainant, the Court
HELD: 1.1 In the entire judgment of the High Court, there are only two sentences which mention the name of the second accused. There is no discussion in the judgment of the High Court as to at what point of time during the course of investigation, A-2 was identified to be the other clean shaven person travelling with A-1 on the fateful day and what was the evidence on the basis of which the prosecution reached such conclusion except the statements (made after 7 years after the event) of PW-3 and PW-4 made at the time of the trial. It is unfortunate that the High Court thought it fit to reverse the acquittal recorded by the Sessions Court and to convict A-2 for an offence under Section
304 Part II read with Section 34 IPC on the basis of such frivolous analysis. [Para 29] [494-D-E]
1.2 The FIR mentioned the name of only A1 and the second participant in the incident was said to be a “clean shaven man”. The FIR does not mention that the clean shaven man either attacked or inflicted any injury on the body of the deceased. It only mentioned that he inflicted fist blows on PW3. The material on record is absolutely bereft of the information regarding the fact as to at which point of time A-2 was identified to be that ‘clean shaven man’ who participated in the incident along with A1 by the investigating agency. Nor is there any material on record to indicate the basis on which the prosecution came to the conclusion that A-2 was that clean shaven man. PW3 and PW4 were examined at the time of inquest over the dead body of the deceased, which took place according to the prosecution at 3.30 p.m. on the date of occurrence. Even those statements of PW3 and PW4 do not mention the name or identifiable description of A-2. Admittedly, at no point of time a test identification parade was held to establish the identity of the clean shaven man to be A-2. [Para 30] [495-B-D]
1.3 From the analysis of the above material, the following conclusions emerge:
(i) Neither PW3 nor PW4 knew the second accused prior to the date of the offence;
(ii) Even on the date of the offence they did not know his name or other particulars which could lead to his identification;
(iii) The prosecution did not bring on record any material to establish as to how they came to the conclusion that the person accompanying the first accused is (A-2);
(iv) The only evidence to connect A-2 with the crime is the statements of PWs 3 and 4 made at the time of the trial (some 7 years after the incident) that A-1 was the other person accompanying A-1 on the fateful day;
(v) There is nothing either in the deposition of PW3 or PW4 that A2 ever attacked the deceased; and
(vi) There is no other evidence on record to show that A-2 attacked the deceased.
In the impugned judgment of the High Court, there is no discussion regarding the identity of A-2 or the role played by him in the incident. Without any discussion whatsoever regarding the evidence either to prove the presence of A-2 along with A-1 at the time of the occurrence or the role played by A-2 in the incident insofar as it pertained to the death of the deceased, the High Court chose to record a finding of guilt against A-2 under Section
304 Part-II read with Section 34 IPC. [Para 31] [496-B-H; 497-A-C]
1.4 The High Court abruptly recorded a conclusion that A-2 is guilty of an offence of Section 304 Part-II read with Section
34 IPC. Such a conclusion is wholly unsustainable. The conclusion of the High Court that A-2 is also guilty of the offence under Section 323 IPC is equally unsustainable in view of the discussion above, especially in view of the fact that there is no trustworthy evidence regarding his presence along with A-1 at the time of the offence. It is not safe to convict A-2 on the basis of the evidence of PWs 3 and 4. Therefore, the Judgment of the High Court insofar as A2 is concerned is set aside. [Para 32] [497-E, G]
2.1 To hold A-1 guilty of causing the death of the deceased, it must be proved that (i) he inflicted fist blows on the deceased as alleged by the prosecution; and (ii) the injuries resulting from the fist blows caused the death of the deceased. [Para 34] [498-C]
2.2 In order to establish the fact that A-1 inflicted fist blows on the deceased, prosecution relied upon the evidence of PWs 3 and 4 who claimed that they were travelling along with the deceased at the time of the occurrence in the car driven by the deceased and, therefore, witnessed the occurrence. The Sessions Court disbelieved the evidence of PWs 3 and 4 principally on two grounds, firstly that the evidence of PW3 and PW4 was not consistent and kept varying from time to time and secondly, the medical evidence does not corroborate the testimonies of PWs 3 and 4. On the other hand, the High Court disagreed with the conclusion of the Sessions Court regarding the trustworthiness of the evidence of PWs 3 and 4. [Para 35] [498-D-E]
2.3 The fact that PWs 3 and 4 are related to the deceased the deceased is not in dispute. The existence of such relationship by itself does not render the evidence of PWs 3 and 4 untrustworthy. Supreme Court has repeatedly held so and also held that the related witnesses are less likely to implicate innocent persons exonerating the real culprits. [Para 38] [499-D]
2.4 PWs 3 and 4 in their evidence before the Sessions Court stated that they travelled with the deceased on the fateful day in a Maruti car driven by the deceased. Both of them stated that there was an altercation between A-1 and the deceased regarding the right of way which resulted in the 1st accused giving fist blows to the deceased. They did not make any allegation in their evidence that A-2 attacked the deceased. Their version is that when they tried to intervene to rescue the deceased, the 2nd accused attacked PW-3 by giving fist blows. Though, it is the evidence of PWs 3 and 4 that A-1 inflicted fist blows onthe deceased, the post-mortem report indicates only two external injuries– one on the temporal region and another on the left knee of the deceased – both are abrasions. The 2nd injury, i.e. abrasion on the knee, according to PW-2 could be the result of the fall. Notwithstanding the narration of PWs 3 and 4 that A-1 inflicted fist blows (multiple blows), it is most unlikely that a person would simultaneously aim at the head and also the knees of the victim while giving fist blows. Of course, it is possible that A-1 delivered more than one fist blow but only one of them landed on the head of the deceased and the others missed the target. Thus, A-1 inflicted a single injury on the head of the deceased and one can safely conclude that the 2nd injury on the knee of the deceased occurred due to a fall at any road. It is not the suggestion of the prosecution that the deceased died of the injury on his knee. The injury on the head of the deceased is an abrasion admeasuring
0.75 cm x 0.5 cm over the left temporal region at the junction of upper part of pinna. There is a corresponding subdural hemorrhage present over the left temporal region of the deceased. [Paras 44, 45] [502-F-H; 503-A-C]
2.5 PW-2 (the Doctor) in the post-mortem report did not give any opinion regarding the cause of the death of the deceased. It is significant to note that PW2 was of the opinion that the injuries were ante-mortem in nature and caused by a blunt weapon. The pathologist gave a report wherein noticed a large number of abnormalities in the condition of the heart of the deceased. Insofar as the brain is concerned, the pathologist did not notice any pathology either on the gross or microscopic examination. On receipt of the pathology report, PW-2 opined that it is necessary to obtain a further opinion of forensic expert. He, therefore, wrote to the Civil Surgeon, Patiala requesting that the case be referred to forensic expert, Government Medical College, Patiala. The Principal, Government Medical College, Patiala constituted a Board consisting of 6 members of whom two were examined as PWs 1 and 2 in the trial of the case. PW-1 was designated as the Convener of the said Medical Board. PW-1 gave a very cryptic opinion (Ex.PA). [Paras 46-48] [503-D, E-F; 504-A-D]
2.6 PW2, who conducted the post-mortem, did not identify the cause of death of the deceased. He only forwarded the opinion of the Medical Board to the Police. On the face of the above evidence, the High Court came to the conclusion that it is the subdural hemorrhage which caused the death of the deceased and not cardiac arrest. As rightly pointed out by the accused, there is no basis in the evidence on record for such a conclusion. When Exhibit PA says that death in the case is “attributed to the effects of head injury and cardiac condition”, to conclude that the cause of death is only hemorrhage and not cardiac arrest is contrary to the evidence on record. On the other hand it must be remembered the pathologist reported that he did not notice any pathology on the brain either on “gross or microscopic examination”. PW-2, who conducted the post-mortem examination, did not give any description of the hemorrhage except to state that subdural hemorrhage existed in the parietal region. He admitted in the cross examination that he did not mention the magnitude or size of the hemorrhage. [Paras 53, 54] [506-B, D, E-F]
2.7 PW-1 is also the author of a textbook on Forensic Medicine and Toxicology. From the statement in the book, it can be noticed from the above statement – (i) subdural hemorrhage by itself does not cause death but it is the compression of brain caused by a large subdural hemorrhage which causes the death; and (ii) about 100-150 ml of hemorrhage is usually the minimum associated with fatalities. The statements made in (Ex PA) and the evidence of PW1 that the head injury itself could be sufficient to cause the death in the ordinary course of nature are mere ipse dixit. Neither any specific details regarding the volume of the subdural hemorrhage are available on record, nor any medical opinion that the subdural hemorrhage caused the compression of the brain that caused the death of the deceased. There is no evidence of any concomitant brain injury. The post-mortem report and the evidence of PW2 are silent in this regard. The pathologist’s report is clear about the absence of any pathology in brain. Such being the evidence on record, the conclusion of the High Court that the deceased’s death is caused by subdural hemorrhage but not cardiac arrest is not based on any evidence on record and is a pure conjecture. It difficult to sustain the conviction of the first accused and the same is set-aside. Because to find a man guilty of culpable homicide, the basic fact required to be established is that the accused caused the death. But, as noticed above, the medical evidence is absolutely uncertain regarding the cause of death of the deceased. [Paras 55, 56] [507-A-G]
2.8 The only fact established on evidence is that A-1 gave a single fist blow on the head of the deceased the deceased. No weapon was used, nor was there any past enmity between the accused and the deceased. It all started with a dispute regarding the right of way resulting in a brawl between them, a very common sight in this country. Apparently, some verbal exchange took place between the accused and the deceased. It is not clear from the record as to what exactly are the words spoken by them except a vague indication that some intemperate language was employed by both of them, nor is it clear who initiated the exchange. [Paras 57, 58] [508-A-B]
2.9 The first accused cannot be held to be responsible for causing the death of the deceased. Therefore, the judgment under appeal is required to be set aside and is accordingly set aside. The material on record leads to the only possible conclusion that the first accused voluntarily caused hurt to the deceased punishable under Section 323 IPC. [Para 63] [509-D-E]
2.10 Section 323 IPC stipulates a punishment of imprisonment of either description for a term which may extend to one year or with fine which may extend to Rs.1000/- or with both. In the circumstances of the case having regard to the facts that (i) the incident is 30 years old; (ii) there is no past enmity between the accused and the deceased; (iii) no weapon was used by the accused; and (iv) the background in which it happened, a punishment of imposition of fine of Rs.1000/- would meet the ends of justice in this case. [Para 64] [509-F]
Mohan Singh and Another v. State of Punjab
AIR 1963 SC 174 : [1962] Suppl. SCR 848 ; Rizan v. State of Chhattisgarh (2003) 2 SCC 661 : [2003] 1 SCR
457 ; Dalip Singh v. State of Punjab AIR 1953 SC
364 : [1954] SCR 145 – referred to.
Textbook of Forensic Medicine & Toxicology Principles & Practice, 6 th Edition, Krishan Vij, Elsevier; Smith J.C. & Hogan Brian, The Elements of a Crime in Criminal Law 5th Edition, ELBS 1983 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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