JUDGMENT
S.L. Kochar, J.
1. The appellant has filed this appeal, challenging his conviction under Section 304 of the IPC and sentenced him to undergo five years’ RI, passed by learned I Addl. Sessions Judge, Sardarpur in ST No. 2/1990, the judgment dated 7-10-1994.
2. Briefly stated, the prosecution case as put forth before the Trial Court is that on 30-10-1989, in the evening at 4. 00 p.m. deceased Badri and his wife Heerabai (P.W. 3), in Village Veerpurpada at their well were separating sesame seed. At that moment, appellant reached over there having farsa. One day prior to the date of incident, cow of deceased entered inside the filed of appellant and appellant chased the cow with farsa to assault. Appellant told deceased Badri that he would kill his cow at which Badri replied that he should not kill the cow, but he would kill him. The appellant dealt a farsi blow on the head of the deceased, resulting into his fall on the ground. At this moment, acquitted co-accused Ganglibai, Phoolsingh and Annabai reached over there and pelted stone, causing injury on the face, and chest of the deceased as well as his wife Heerabai. The incident was also witnessed by Chagan and Bhuribai. They tried to save the deceased, but accused persons assassinated Badri. Heerabai along with village chowkidar went to police station and lodged the report. Police registered Crime No. 227/1989 under Section 302/34 of the IPC against three persons and commenced investigation. During the course of investigation, spot map was prepared. Blood stained and controlled earth were seized. After arrest of the appellant at his instance blood stained farsa was seized and same was sent for examination to FSL. In FSL report, simple blood was found on farsa. Dead body was sent for post-mortem examination after inquest and same was conducted by Dr. A.K. Shrivastava (P.W. 2). The post-mortem report is Exh. P-3. After necessary investigation, charge- sheet was filed against three accused persons.
3. The accused persons denied the charges and submitted that deceased was a bully and was the aggressor, at that juncture the crowd assembled and caused him injuries by pelting stone, but police concocted a false case against them. They have examined two witnesses in defence. The learned Trial Court, while acquitting co-accused Ganglibai and Annabai, convicted the appellant as indicated herein above.
4. The learned Counsel for appellant has not disputed the homicidal death of deceased Badri which is otherwise also properly proved by the evidence of Dr. A.K. Shrivastava who proved autopsy report (Exh. P-3) and found four external injuries on skull of deceased; all the injuries were lacerated wounds. The deceased died because of fracture of frontal bone and damage to brain. According to Dr. Shrivastava, deceased suffered all the four lacerated wound, caused by hard and blunt object. On query (Exh. P-5) he opined that injury number one could be caused by farsa sent to him by police but in cross-examination again he has stated that lacerated wounds could not be caused by sharp edged weapon like farsa but same could be caused from its blunt side. He has also stated that injuries could be caused by pelting of stone and injury number one fracture of frontal bone could be caused by big stone.
5. The learned Counsel for appellant has submitted that the conviction of the appellant is based on solitary testimony of Heerabai (P.W. 3), wife of the deceased and her version is belied by medical evidence of Dr. Shrivastava (P.W. 2) because according to Heerabai, appellant dealt four farsa blows from its sharp edge, but all the four injuries on skull were the lacerated wound caused by hard and blunt object. The learned Trial Court has erred in seeking corroboration to the testimony of Heerabai by evidence of Dr. A.K. Shrivastava because Dr. Shrivastava has specifically stated that injuries could be caused by hard and blunt object and from the blunt side of the farsa (iron made sharp edged weapon fixed in wooden handle) and injury number one fracture of frontal bone could be caused by heavy stone. According to learned Counsel, in view of the medical evidence, it is crystal clear that Heerabai was not present at the time of incident and later on became eye-witness along with his son Ambaram (P.W. 4) and Manglibai (P.W. 5). The learned Trial Court held in Para 23 that Ambaram (P.W. 4) and Manglibai (P.W. 5) were not the fully reliable witnesses and their evidence could not corroborate the testimony of Heerabai (P.W. 3).
6. To combat, the learned Counsel for State has supported the judgment and finding of the Trial Court. He urged that if testimony of eye-witness is otherwise reliable and truthful, the conflict with medical evidence would not cause any dent to the prosecution case.
7. Having heard the learned Counsel for parties and after perusing the entire record, this Court is of the view that solitary testimony of wife of the deceased Heerabai (P.W. 3) is not fully reliable because according to her FIR, appellant struck farsi blow twice and her version in Court is not fully corroborated by her FIR (Exh. P-7). The learned Trial Court, in Para 30 of the impugned judgment, held that statement of Heerabai is reliable and proved for causing two injuries on the head of deceased and not four injuries. The learned Trial Court sought corroboration to the Court statement of Heerabai from FIR (Exh. P-7) and her case diary statement (Exh. D-1) vis-a-vis evidence of Dr. A.K. Shrivastava (P.W. 2). This finding of learned Trial Court does not appear to be correct because in Court Heerabai has specifically stated that appellant dealt four farsi blows from its sharp side and caused four injuries to deceased. Out of these four injuries, which two were caused by appellant is not clear from the finding of the learned Trial Court. The learned Trial Court has also erred in seeking corroboration to the statement of Heerabai given in Court by her case diary statement (Exh. D-l) recorded under Section 161 of the Cr. PC. This statement can only be used to contradict the witness and not for corroboration, as per provision under Section 162 of the Cr. PC read with Section 145 of the Cr. PC (sic: Evidence Act). This is the undisputed established legal position by the plethora of Apex Court judgments as well as judgments of High Courts of the country. See Satpal v. Delhi Administration , Jagdish Narain v. State of U.P. and Onkar Namdeo v. Second Additional Sessions Judge, Buldana .
8. The learned Trial Court has also committed error of law by seeking corroboration to the testimony of Heerabai (P.W. 3) by post-mortem report (Exh. P-4). Post-mortem report (Exh. P-4) cannot be treated as a substantive piece of evidence. It can be used for corroboration to the testimony of its author Dr. A.K. Shrivastava (P.W. 2) and to refresh the memory by Doctor as per provision under Section 159 of the Evidence Act.
This is true that eye-witness/eye-witnesses account can be relied upon if the same is found fully reliable and truthful even there is conflict with the medical evidence, but in the instant case, statement of Heerabai is not fully reliable and same is contradicted by her FIR. It is not clear that out of four injuries caused by hard and blunt object which two were caused by the appellant by the blunt side of the farsi. The learned Trial Court having held that witness Heerabai has specifically stated that all the four injuries were caused by sharp edge of the farsi without any solid and proper reasons, jumped into the conclusion in Para 35 of the impugned judgment that appellant caused two injuries on the head by blunt side of the farsi. In case of the Thaman Kumar v. State of Union Territory of Chandigarh , the Supreme Court has considered conflict between the medical evidence and eye-witness/witnesses statements and observed as under:
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 b 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 eye-witnesses. 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 by 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.
9. In view of the aforesaid Supreme Court Court dicta, in the instant case the first situation of conflict between the statement of eye-witness Heerabai (P.W. 3) and medical evidence is present. Heerabai has specifically stated that injuries were caused by sharp edge of farsa whereas not a single injury was found on the person of the deceased caused by sharp edged weapon. Therefore, her statement on this aspect cannot be relied upon because of direct conflict with the medical evidence and instant case squarely falls within the category number one as held by Supreme Court in the case of Thaman Kumar (supra).
10. Ex-consequenti, in the wake of aforesaid factual and legal discussion, this Court is of the view that prosecution has miserably failed to prove its case beyond all reasonable doubt against the appellant. Thus, this appeal deserves to be allowed and hereby allowed. The conviction and sentence of the appellant passed by the impugned judgment are hereby set aside. The appellant is on bail. His bail bond and surety bond stand discharged.