K.T Thomas, J.— This appeal by special leave is by the State of Uttar Pradesh challenging the acquittal order passed by a Division Bench of the Allahabad High Court in a murder case. The Sessions Court had convicted four accused under Section 302 read with Section 34 of the Indian Penal Code and sentenced all of them to imprisonment for life and it was on their appeal that the conviction was reversed. The four accused were arrayed in this appeal as respondents, but first respondent Harban Sahai passed away during the pendency of this appeal. So the case was considered only as against the remaining three respondents. They are 2nd accused-Sarwan Sahai, 3rd accused-Virendra and 4th accused-Vimlesh.
2. The genesis of the events which led to the occurrence in this case was the murder of Virendra's father (Shyam Manohar) in 1976. In that murder case PW 1 (Shashi Bhushan) and his uncle (Jagdish Prasad — the deceased in this case) were challaned by the police as accused which ended in their conviction by the trial court. They filed an appeal before the Allahabad High Court. During the pendency of that appeal their sentence was suspended and they were released on bail just a couple of days prior to the incident in this case. First accused (Harban Sahai) and second accused (Sarwan Sahai) are the nephews of Shyam Manohar. The fourth accused (Vimlesh) is his grandson. As pointed out above, third accused (Virendra) is the son of Shyam Manohar.
3. The incident in this case happened on 16-1-1978. Prosecution version is thus: Jagdish Prasad (deceased) and his nephew Shashi Bhushan (PW 1) were walking through the sugarcane field belonging to one Maiku. The time was then around 4.30 p.m They saw the fourth accused emerging from the north of that field. First accused (Harban Sahai) and fourth accused (Vimlesh) had guns with them and others had lathis. Seeing the deceased and Shashi Bhushan the third accused (Virendra) yelled out that they would avenge for the murder of their father. Sensing the onrushing danger PW 1 and the deceased scampered away, but they were chased by the assailants. A-1 (Harban Sahai) and A-4 (Vimlesh) fired their guns and Shyam Manohar fell on the ground, while PW 1 succeeded in escaping by running towards a different direction. Second accused (Sarwan Sahai) and third accused (Virendra) went near the fallen victim and lambasted him with sticks. When some local people rushed to the scene the assailants made their escape good. Jagdish Prasad was taken in a bullock-cart to the hospital but on the way he breathed his last.
4. The first information report was lodged by PW 1 (Shashi Bhushan) at the local police station in which he mentioned all the details of the occurrence including the names of the accused as well as the names of those who reached the place on hearing the commotion.
5. PW 7 (Dr R.S Pandey) of the District Hospital, Moradabad, conducted post-mortem examination on the dead body of Jagdish Prasad. He noted ten ante-mortem injuries on the body including five lacerated wounds and one incised wound on the right chest which did not gape into the cavity. Among the lacerated wounds one was ostensibly a gunshot wound on the left temporal region associated with a fracture. One pellet was found embedded in the brain. That wound is described as Injury 7 in the post-mortem certificate issued by the doctor.
6. Sessions Judge found that evidence of PW 1 (Shashi Bhushan) and PW 2 (Shiv Sagar Lal) are quite reliable basing on their testimony. The trial court convicted all the accused.
7. But the High Court found the evidence of the two eyewitnesses not worthy of credence. One of the reasons highlighted by the High Court is that both eyewitnesses said in court that one of the lathis was a kanta (a stick with a knife-like portion on one end) whereas in the FIR, the informant had said that only lathis and guns were employed by the assailants. According to the High Court the witnesses purposely made the said improvement upon the FIR in order to give an explanation for the incised injury noted by the doctor during autopsy.
8. The aforesaid criterion is the result of a strained reasoning. It is understood that kanta without sharp projection at the end would be a mere stick or lathi. If the nephew of the deceased mentioned in the FIR that the assailants were armed with lathis and guns there is no reason to conclude that the informant when he gave first information had ruled out the possibility of kanta being used by the assailants. FIR is not a chronicle of the exhaustive details of the occurrence, nor is it a catalogue of everything including minor particulars of the events which took place. Picking out an insignificant discrepancy regarding description of one of the weapons for jettisoning an otherwise sturdy account of the eyewitness is not a commendable approach in the evaluation of evidence.
9. The second reason put forth by the High Court for disbelieving the version of the eyewitnesses is this: PW 1 (Shashi Bhushan) and PW 2 (Shiv Sagar Lal) said that two accused had fired the gun simultaneously, but the deceased sustained only one gunshot injury which is described in the post-mortem certificate as Injury 2. The Public Prosecutor in the trial court endeavoured to show that Injury 7 would possibly have been the result of a gunshot. Dr R.S Pandey (PW 7) answered to the said query saying that there is a possibility of that injury being caused in a gunshot if pellets have touched that part of the face and deflected therefrom. Injury 7 is described as “multiple abrasions in an area of 7 cm × 6 cm on the right side of the face 2.5 cm below the right eye”. But the High Court ruled out the possibility of the said injury having been caused in gunshot on the following reasoning:
“But in the cross-examination the doctor has denied the possibility of such injury being caused while the deceased was being chased from behind and that is exactly what the prosecution case is, that while the deceased was running away the two appellants armed with guns, fired from behind. Consequently Injury 7, even if it is said to be a gunshot injury, would not go to corroborate the prosecution case in any manner.”
The High Court has thus knocked out an eyewitness on the strength of an uncanny opinion expressed by a medical witness. Overdependence on such opinion evidence, even if the witness is an expert in the field, to checkmate the direct testimony given by an eyewitness is not a safe modus adoptable in criminal cases. It has now become axiomatic that medical evidence can be used to repel the testimony of eyewitnesses only if it is so conclusive as to rule out even the possibility of the eyewitness's version to be true. A doctor who conducted post-mortem examination or examined an injured person is usually confronted with such questions regarding different possibilities or probabilities of causing those injuries or post-mortem features which he noticed in the medical report. But the answers given by the witness to such questions need not become the last word on such possibilities. After all he gives only his opinion regarding such questions. But to discard the testimony of an eyewitness simply on the strength of such opinion expressed by the medical witness is not conducive to the administration of criminal justice. (Vide Piara Singh v. State of Punjab (1977) 4 SCC 452, AIR 1977 SC 2274, Mange v. State of Haryana (1979) 4 SCC 349, AIR 1979 SC 1194, Ram Dev v. State of U.P 1995 Supp (1) SCC 547 (2))
10. In this case, the High Court has overlooked the fact that even the admitted gunshot injury was “on the left temporal region”. If such an injury could be caused while both were running then it is equally possible that a gunshot injury can as well be caused on the “right side of the face”. It would be weird to assume that the running man's head would not have swivelled to either side. That apart, it is not necessary that the bullet emanated from the gun should have hit the target, as it might have just bypassed him. At any rate, the said reasoning of the High Court is too fragile for throwing the evidence of an eyewitness overboard.
11. The third reasoning of the High Court is that the bloodstained earth collected by the Investigating Officer from the place of occurrence was not forwarded to the Chemical Examiner to test the origin of blood. Such a reasoning is too tenuous and even if such contention was advanced by the defence, the High Court need not have taken any serious heed to it. Omission to send the earth collected from the place of occurrence for chemical examination has not vitiated the investigation to any extent. We disapprove the aforesaid reasoning of the High Court.
12. When the reasons put forth by the High Court against the evidence of the two principal witnesses PW 1 (Shashi Bhushan) and PW 2 (Shiv Sagar Lal) are found too insufficient to discard their testimony we have to look at the evidence from other angles to see how far it is acceptable.
13. PW 1's version regarding the occurrence gets a very stable corroboration from the FIR which was lodged by him within two hours of the occurrence. The High Court did not entertain any doubt that the FIR was ante-dated or that there was any delay in its lodgement. Even the defence did not contend like that. In such a situation the prompt and early reporting of the occurrence by PW 1 to the police with all its vivid details gives us an assurance regarding truth of his version.
14. Evidence of PW 2 can be viewed from broad angles. He is the owner of a field situated adjacent to the place where the occurrence happened. So there is a fair probability of his being present at his field. Second is, when PW 1 stated in the FIR that a number of persons had reached the place during the occurrence, the name of PW 2 was also mentioned in that list. The Investigating Officer questioned him at the earliest point of time and cited him as an eyewitness. The trial court found his evidence quite reliable. There is nothing to doubt that he was speaking falsehood. For these reasons we find no scope to reject his testimony.
15. The motive alleged for the murder is apparently a very strong one. The assailants are the close kith and kin of Shyam Manohar who was murdered. There was every ground for the assailants to believe that Shyam Manohar was murdered by the deceased Jagdish Prasad and his nephew Shashi Bhushan (PW 1). This is clear from the fact that one court found them guilty of that murder. But when the assailants knew that despite the conviction and sentence passed by the trial court they were at large as the High Court had suspended their sentence and released them on bail, naturally the instinct of revenge would have been galvanised and they would have been groping for an opportune time to avenge the murder of their father Shyam Manohar. Thus the motive put forward by the prosecution stands proved and it is a very strong circumstance to buttress the prosecution version.
16. In our view, the High Court has benefited the accused with an unjust and unmerited acquittal based on certain reasons which are wholly insupportable.
17. We, therefore, reverse the order of acquittal and restore the conviction and sentence passed by the Sessions Court. We direct the Sessions Court to take necessary steps to put Respondents 2, Sarwan Sahai, 3, Virendra and 4, Vimlesh back in jail for undergoing the sentence. The appeal is thus allowed.