JUDGMENT
A.K. Shrivastava, J.
1. Feeling aggrieved by the judgment of conviction and order of sentence dated 24th January, 1995 passed by 1st Additional Sessions Judge, Mandla in Sessions Trial No. 71/90 convicting the appellant under Section 302, IPC and sentencing him to suffer Rigorous Imprisonment of life and further convicting appellant under Section 323 for causing voluntary hurt to Saroj Bai and sentencing him to suffer Rigorous Imprisonment of three months, the appellant has preferred this appeal under Section 374(2) of Code of Criminal Procedure, 1973.
2. In brief, the case of prosecution is that in the night of 27-3-1990 acquitted accused Daro Bai and Khimmi Bai called Chandrabhan (Hereinafter referred to as ‘the deceased’) and all the accused persons who were five in number, by sharing common object caused injuries to him (deceased) by lathi and Chaunh (pointed end of the plough). The first information report was lodged by eye-witness Tarabai who is the wife of the deceased.
3. On lodging of the first information report the criminal law was set in motion. Investigating agency arrived at the spot; seized the dead body; seized necessary articles; recorded the statement of the witnesses; sent the dead body for post-mortem and after completing the investigation a charge-sheet was submitted in the competent Court which on its turn committed the case to the Court of Sessions and from where it was received by the trial Court for trial.
4. Learned trial Judge, on the basis of the averments made in the charge-sheet, framed charges against the accused persons which are mentioned in para-1 of the impugned judgment. Appellant was also charged Under Section 302/34 as well as under Section 323, IPC. All the accused persons abjured their guilt and pleaded complete innoncence.
5. In order to bring home the charges, prosecution examined as many as 11 witnesses and placed Ex. P/1 to P/24, the documents on record. The defence of the accused persons is of false implication and the same defence they setforth in their statement recorded, under Section 313, Cr.P.C. However, they did not chose to examine any witness in their defence.
6. Learned trial Court on the basis of the evidence placed on record came to hold that the accused persons namely Dimanku, Daro Bai, Kimini Bai and Fulwa did not commit the offence punishable under Section 302/34, IPC as a result of which they were acquitted from the said charge. Accused Nos. 2 to 4 were convicted under Section 323, IPC but it appears that no appeal has been preferred by them against their conviction. Accused No. 5-Fulwa was tried for the charge punishable under Section 212, IPC, but he was acquitted by the impugned judgment and it appears that no State appeal has been filed against judgment of his acquittal.
7. On the basis of the evidence placed on record, learned trial Court convicted appellant-Amarlal for the offence punishable under Section 302, IPC for committing murder of the deceased and he has been further convicted under Section 323, IPC for causing voluntary hurt to Saroj Bai. Learned trial Court passed the sentences which are mentioned in the impugned judgment.
8. In this manner this appeal has been filed.
9. It has been contended by Sri Bhave, learned senior counsel, that if the evidence of eye-witness Tara Bai (P.W. 4) and Saroj Bai (P.W. 5) is considered in proper perspective, it would reveal that the role assigned to the present appellant is that he caused injuries by pointed end of the plough to the deceased but there is no corresponding injuries in that regard in the post-mortem report Ex. P/14 and the Autopsy Surgeon Dr. S.N. Bhashkar (P.W. 6) has specifically denied that injury No. 5 which is fatal and on account of which the deceased died, could be caused by pointed end of the! plough. Thus, learned trial Court has erred in law in convicting the appellant and this appeal be allowed.
10. On the contrary Shri T.K. Modh, learned Dy. Advocate General, has argued in support of the impugned judgment.
11. Having heard learned Counsel for the parties, we are of the considered view that this appeal deserves to be allowed in part. The conviction of the appellant under Section 302, IPC deserves to be set aside. However, the conviction under Section 323, IPC for causing voluntary hurt to Saroj Bai is required to be affirmed.
12. On going through the evidence of P.W. 4-Tara Bai and RW. 5-Saroj Bai, it is gathered that the appellant caused injuries to Saroj Bai, as a result of which he has been rightly convicted by the learned trial Court under Section 323, IPC. The conviction of appellant under Section 323, IPC is, therefore, affirmed.
13. The question now would arise is that whether appellant has committed the offence punishable under Section 302, IPC for which he has been convicted and has been sentenced to suffer R.I. of life.
14. The Star witnesses of the prosecution are Tara Bai (P.W. 4) and Saroj Bai (P.W. 5). Apart from these two eye-witnesses the genesis of the offence can also be gathered from the statement of Autopsy Surgeon P.W.-6-S.N. Bhashkar.
15. Tara Bai (P.W. 4) who is the wife of the deceased has specifically stated that the appellant caused injuries by Chaunh (pointed end of the plough) on the head of the deceased. The same version has also been stated by P.W. 5-Saroj Bai who is the daughter of the deceased. Thus, according to the eye-witnesses, appellant caused injuries to the deceased by Chaunh (pointed side of the plough).
16-17. However, Dr. S. N. Bhashkar while performing the post-mortem of the deceased found the following injuries on the person of the deceased:
i) Contusion 1″ x 1/2″ in size on the forehead 2″ above to left eye brow.
ii) Contusion 3″ x 2″ in size on the left side of neck 3″ below to ear.
iii) Contusion 1″ x 1″ on left shoulder.
iv) Contusion 2″ x 2″ just in front of left ear.
v) Swelling on left parietal region 3″ x 4″ in sizes.
According to the doctor, all the injuries were ante-mortem. In his post-mortem re-port Ex. P/14 the doctor has specifically mentioned about the detail of injury No. 5 which reads thus:
Fracture of left parietal bone found. Size of fracture is 2″ x 1/4″. On opening skull extra dural haematoma present. Middle meningeal artery found ruptured.
According to the doctor the cause of death was compresstve extra dural haematoma on the head. The Autopsy Surgeon when appeared in the Court as P.W. 6 has specifically admitted in para-9 that above said injury No. 5 could not be attributed by the Chaunh (pointed end of the plough). However, according to the doctor, if the stick side of the Chaunh is used as weapon, the said injury may come. But, according to the eyewitnesses, the Chaunh side i.e. pointed side of the plough was used by the appellant. Thus, the evidence of eye-witnesses is not corroborated from the medical evidence.
18. True, much credence should be given to the statement of the eye-witnesses in comparison to the medical opinion. But, it is equally true that if the injury by which the death has caused could not at all be attributed as stated by eye-witnesses, benefit would go to the accused. We may further add that the conflict between oral testimony and medical evidence can be of varied dimensions and shapes. If there is total absence of injuries which are normally caused by a particular weapon, in that case the benefit will definitely go to the accused person and in that situation the same cannot be compared with other type of cases where though the injuries found on the victim are of the type which are possible by the weapon of assault, but the size and dimension of the injuries do not exactly tally with the size and dimension of the weapon, or where the injuries found on the victim are such which are normally caused by the weapon of assault but they are not found on that portion of body where they are deposed to have been caused by the eye-witnesses and, therefore, according to us, the same kind of inference cannot be drawn in the three categories of apparent conflict in oral and medical evidence. In the first category it can be inferred that the oral evidence regarding assault having been made from a particular weapon is not truthful. We may profitably rely the decision of the Supreme Court Thaman Kumar v. State of Union Territory of Chandigarh , wherein in para-16 the Supreme Court has laid down the law thus:
16. The conflict between oral testimony and medical evidence can be of varied dimensions and shapes. There may be a case where there is total absence of injuries which are normally caused by a particular weapon. There is another category where though the injuries found on the victim are of the type which are possible by the weapon of assault, but the size and dimension of the injuries do not exactly tally with the size and dimension of the weapon. The third category can be where the injuries found on the victim are such which are normally caused by the weapon of assault but they are not found on that portion of the body where they are deposed to have been caused by the eyewitnesses. The same kind of inference cannot be drawn in the three categories of apparent conflict in oral and medical evidence enumerated above. In the first category it may legitimately be inferred that the oral evidence regarding assault having been made from a particular weapon is not truthful. However, in the second and third categories no such inference can straight away be drawn. The manner and method of assault, the position of the victim, the resistance offered by him, the opportunity available to the witnesses to see the occurrence like their distance, presence of light and many other similar factors will have to be taken into consideration in judging the reliability of ocular testimony.
The present case is of first category. Both the eye-witnesses are stating that from the Chaunh (pointed end of the plough) injury was caused to the deceased, but the doctor in very specific words has said that injury No. 5 by which the deceased died could not come by Chaunh. Thus, according to us, appellant is entitled for the benefit of doubt.
19. Resultantly, this appeal succeeds in part and is hereby allowed in part. The conviction of the appellant under Section 302, IPC is hereby set aside and he is acquitted from the said charge. However, his conviction under Section 323, IPC is hereby maintained. Appellant has already suffered jail sentence for the offence under Section 323, IPC. The appellant is in jail, he be set at liberty forthwith, if not required in any other case.