Y.K Sabharwal, J.— Respondents 1 and 2 in this appeal who are brothers were convicted by the Sessions Court for the offence under Sections 452, 307 read with Section 34 and Section 302 read with Section 34 IPC. Their father, Respondent 3, was also convicted for offence under Sections 452, 307 and Section 302 read with Section 34 IPC. Their conviction and consequently the sentence that had been imposed on them by the Sessions Court was set aside in appeal by the High Court in terms of the impugned judgment. The State is in appeal to this Court on grant of leave. During the pendency of the appeal, Respondent 3 Devi Das died. The appeal thus abates against him.
2. The prosecution case in brief is that Respondents 1 and 2, their father and another person entered the house of Raghubir (PW 3) at about midnight of 15-1-1977/16-1-1977 while he was sleeping with his wife and children. After removing the quilt, the respondents held fast PW 3 and he was hit on the head with the butt of the country-made pistol. When Budh Wati @ Ved Wati, wife of PW 3, came to save him, she was also assaulted with the butt of the pistol. On hearing their cries, Mathuri (PW 4) and Balwant, living in the same compound, came whereupon the accused ran away. PW 3 and his wife were assaulted because PW 3 was cited as a prosecution witness against the respondents and their father in the case of murder of one Rajinder, son of Prem Sahai where they were accused. The place of occurrence is at a distance of about 9 kilometres from the police station. The FIR was recorded on the statement of PW 3 at 8.30 a.m Budh Wati succumbed to her injuries at about 9.00 p.m on 16th January.
3. The Sessions Court, on appreciation of the evidence of PW 3, PW 4, police officials and the medical evidence, convicted the three accused. The fourth person was not identified and, thus, could not be apprehended.
4. In reversing the judgment of the Sessions Court, the factors that have been taken into consideration and weighed with the High Court are:
1. Absence of proof of light.
2. Improvements and contradictions in the testimony of prosecution witnesses.
3. Difference between the ocular and medical evidence regarding injuries.
5. The incident took place around midnight. The reasons for the High Court's coming to the conclusion that there was no source of light available to the witness to recognize the assailants are:
(a) Non-mention of the presence of electric bulb in the FIR.
(b) Admission of PW 3 that electric connection was not available in his house before the incident.
(c) Fact of source of light being not mentioned in the statement of PW 3 recorded during investigation under Section 161 of the Criminal Procedure Code.
6. PW 7 SI S.P Singh inspected the place of occurrence on 16th January and prepared a site plan which mentions one electric bulb in the kothri of Raghubir, one in his courtyard and another in the kothri of PW 4. These electric points have been shown in the site plan (Exhibit Ka-10). The witness was hardly challenged. The existence of the electric bulbs was also not seriously challenged in the cross-examination of other witnesses. The omission to mention about light in the FIR or in the statement of PW 3 recorded by the police under Section 161 CrPC was wholly inconsequential. PW 3 had made a categorical statement of having recognized the assailants. There is also no admission in the statement of PW 3 about the non-availability of the electric connection. The finding as also the reasoning is wholly contrary to the evidence and the established facts. The High Court has held that the statement of PW 3 was recorded on 9-5-1979 and he admitted that the electric connection was made available about one year ago and from this, the admission of PW 3 was inferred about the non-availability of the electric connection. The testimony of PW 3 clearly shows that when he stated that the electric connection was made available less than a year ago he was referring to the date of the incident and not the date when his statement was recorded. After deposing about the time when the electric connection was installed, PW 3 further stated that he told the police about the electric light being on. By no stretch of imagination can anyone come to the conclusion that PW 3 admitted that when the occurrence took place, there was no electric connection. The mention of the electric bulbs at various places, as earlier noticed, was also made in the site plan prepared by the police. In this view, the High Court committed grave illegality in coming to the conclusion that in the absence of light, the assailants could not be recognized.
7. For reaching the conclusion that there are improvements and contradictions in the statement of the prosecution witnesses, the High Court has completely misread the FIR and has come to the conclusion that the factum of the respondents having caught hold of PW 3 has not been mentioned in the FIR. In fact, the FIR specifically states that the respondents caught hold of PW 3. The High Court seems to have made too much of the minor contradictions about the non-mention of the dandas in the FIR. The so-called contradictions and improvements, according to the High Court, are the result of darkness in view of the absence of the electric connection, a finding which is not at all sustainable as noticed above. The further finding of the High Court that testimony of PW 3 is uncorroborated is again unsustainable. PW 4 was living in the same compound. His name is mentioned in the FIR. He is deposed to have seen the respondents coming out of the house of PW 3. PW 4 is the next-door neighbour of PW 3. He is a natural witness of the occurrence. A well-reasoned judgment of the Sessions Court on critical analysis of the evidence was reversed by the High Court on consideration of improvements and contradictions which are minor and natural and rather go to show the truthfulness of the evidence.
8. Reverting to the third factor, namely, difference between medical and ocular evidence, the High Court has held that the injuries were caused by the sharp-edged weapons and, therefrom, concluded that the ocular testimony of PW 3 was contradicted by medical evidence and, thus, labelled PW 3 as an unreliable witness.
9. PW 8 Dr Arjun Kumar, on medical examination on 16th January at about 10.05 a.m found the following injuries on PW 3:
“Incised wound over right frontal region of scalp, 9 cm above root of nose, size 6 cm × 1 cm × bone-deep, fracture of the underlying bone is visible, patient complained of bleeding from both nostrils, clotted blood was present in both sides of the nose, edges of the wound were clean-cut, wound is gaping, oblique in direction as shown in the figure.”
10. On medical examination of Budh Wati at about 10.25 a.m on the same date PW 8 found the following injuries:
“(1) Incised wound over left occipital region of scalp, 8 cm above and behind left ear, size 5 cm × 1 cm × bone-deep, edges were clean cut, wounds were gaping, suspected fracture of underlying bone, x-ray was advised, injury was kept under observation, the injury appeared to have been inflicted with a sharp-edged weapon, direction was forward-backward.
(2) Abrasion over right temple, 1 cm outer from the outer angle of the right eye, size 3 cm × 2 cm blackish colour, it was a simple injury, must have been caused with a blunt weapon.
(3) Abrasion over right side of the forehead, 2 cm above the right eyebrow, size 2 cm × 1 cm, blackish colour, simple, caused by a blunt object.
Patient was in her senses, but was not able to speak. Pulse rate was 72 per minute, respiration 24 per minute, eyelids were normal, and were reacting against light, all the injuries were inflicted within 24 hours.”
11. PW 3 and his wife were sent to the District Hospital, Budaun. Later she died at 9 p.m on the same date. Dr B.K Srivastava (PW 1) conducted the autopsy and as per the post-mortem report prepared by him found the following injuries on the deceased:
“(i) Lacerated wound 6 cm × 1 cm × 1/2 cm on the left side of the head, 9 cm above the left eye.
(ii) Contusion 3 cm × 1/2 cm on the right side of forehead, 3 cm above the right eyebrow.
(iii) Contusion 3 cm × 1 1/2 cm on the right side, 3 cm at the tragus from the right ear.
(iv) Clotted blood present in the right ear.
(v) Abrasion with contusion, 10 cm × 3 cm on the upper arm, 19 cm above the right elbow joint.
(vi) Abrasion 2 cm × 1/2 cm on the inner aspect of little finger of left hand.”
On the internal examination, he found:
“(1) Fracture present 10 cm long on the left parietal bone, extending up to occipital bone.
(2) Fracture 5 cm long, on the left side of the parietal bone up to Lamsdard puture.
(3) Fracture 2 1/2 cm long, obliquely, between Injuries 1 and 2 on parietal bone.
(4) Base of skull on the right side was broken. Clotted blood was found below the skin of the scalp.”
12. The medical evidence produced by the prosecution comprises the aforesaid two doctors PW 1 and PW 8 besides Dr S.C Sharma (PW 9) who had examined the injured PW 3 and had also deposed on the basis of x-ray reports and other documents. The High Court for the view that the injury was inflicted by a sharp-edged weapon has placed strong reliance on the testimony of PW 8. Learned counsel for the respondents has also placed strong reliance on the testimony of the said doctor. Before considering this contention and examining the testimony of PW 8, it would be useful to notice as to what has been deposed by PW 1 and PW 9. It is also to be kept in mind that the real question is whether the testimony of PW 8 is such which if accepted would either belie the ocular testimony of PW 3 or create reasonable doubt on the credibility of PW 3; the said testimony can be trusted and relied upon despite the deposition of PW 8.
13. According to Dr Srivastava (PW 1) who conducted the post-mortem, wife of PW 3 died due to fracture in the bone of skull, parietal bone and occipital bone and bleeding and shock. Internal fractures 1 to 4 were the resultant effects of Injuries 1, 2 and 3 and these injuries, according to the doctor, must have been caused with a blunt weapon. His categorical testimony is that none of these injuries was an incised wound caused with a sharp weapon. He has further deposed that it becomes difficult to say whether a wound on a bony part is a lacerated or incised one.
14. PW 9 (Dr S.C Sharma) who, at the relevant time, was a Senior Surgeon at Budaun Hospital had examined PW 3 who was treated and discharged a month later on 16-2-1977. He also examined the x-ray of the head of PW 3 which showed the fracture of the frontal bone. According to Dr Sharma, depressed fractures are generally caused with blunt weapons. He further deposed that such an injury is possible with a blunt object like the butt of the pistol. In cross-examination, he stated that the weapon may be blunt or sharp-edged, its heavy blow can cause the fracture and depressed fracture will be caused when there is a full-blooded blow on the bone. Now turning to the evidence of Dr Arjun Kumar (PW 8) on which strong reliance has been placed, in his cross-examination, he stated that Injury 1 is a clean-cut wound which he wrote after examining with a magnifying lens. He, therefore, deposed that the injuries were caused with a sharp-edged weapon and not with a blunt object. It is on this part of the evidence of PW 8 that strong reliance has been placed by Mr Sinha, learned counsel for the respondents. However, PW 8 has further deposed that if the butt had a projecting tin piece, it could cause such an injury and that the tin piece must have been fixed over so much part of the width of the butt as could cut up to the bone and that weapon may be sharp-edged or blunt, its thrust can cause fracture. He has further deposed that injury with a blunt object sometimes appears to be an incised wound. The testimony of PW 8 that the injuries were caused with a sharp-edged weapon and not with a blunt weapon, is in the nature of the opinion of one of the doctors. In any case, testimony of PW 8 cannot be read in isolation. His evidence is to be read as a whole and when so read it becomes clear that the injuries of the kind inflicted on PW 3 and the deceased could be caused with the butt of the revolver. It has also to be borne in mind that generally injury on the head is caused by a blunt weapon.
15. Learned counsel for the respondents has placed reliance on Modi's Medical Jurisprudence and Toxicology (22nd Edn.) in support of the contention that the clean-cut edges of the wound and the wound being gaping, as deposed by PW 8, shows that it was an incised wound. According to Modi, the edges of a wound made by a heavy-cutting weapon, such as an axe, hatchet or shovel, may not be as smooth as those of a wound caused by a light-cutting weapon, such as a knife, razor etc. and may show signs of contusion. However, while dealing with an incised-looking wound, according to Modi, occasionally, on wounds produced by a blunt weapon or by a fall, the skin splits and may look like incised wounds when inflicted on tense structures covering the bones, such as the scalp, eyebrow etc. Mr Sinha, however, submits that if that had been so, the edges of the wound would have been irregular and hair bulbs would have been found crushed when the injuries were examined by a magnifying glass by PW 8. The learned counsel, however, overlooks the fact that the main evidence of all the doctors is that the injuries in question could be inflicted with the butt of the revolver and it would look like an incised wound having been inflicted with a sharp-edged weapon. Besides the medical evidence, what is also to be kept in view is that in the FIR recorded on the oral statement of PW 3 immediately after the occurrence, it was specifically stated that the injuries were caused by the butt of the country-made pistol. The medical evidence and the ocular evidence is wholly consistent as was rightly held by the Court of Session. We are conscious of limitations while dealing with an appeal against a judgment of acquittal. Having, however, found that miscarriage of justice has resulted by an entirely faulty and erroneous appreciation of evidence by the High Court, it becomes our duty to interfere in the matter. From the evidence, the only view possible is the one taken by the Sessions Court.
16. On the facts and circumstances of the case, it is also not possible to accept the contention that the respondents had no intention to kill and, therefore, their conviction deserves to be altered to be one falling under Section 304 IPC. As already noticed, at the dead of night the respondents and their father went to the house of PW 3 with a country-made pistol and with force inflicted such injuries on the head which resulted in death of the wife of PW 3. The mere fact that only a single blow was inflicted on the head by itself is not enough to alter the conviction from Section 302 to Section 304 IPC.
17. For the aforesaid reasons, we are unable to sustain the judgment of the High Court. The appeal is accordingly allowed and setting aside the impugned judgment of the High Court, the conviction and sentence imposed on Respondents 1 and 2 by the Additional District and Sessions Judge, Budaun is restored. The bail bonds of Respondents 1 and 2 are cancelled. They shall be taken into custody forthwith to serve the remaining part of the sentence.