JUDGMENT
S.N. Jha and P.K. Sarin, JJ.
1. The appellants have been convicted under Section 302/34 of the Penal Code for committing the murder of Jorabar Yadav in village Siswa within Gogari police station of Khagaria di strict on 8-9-82 at 10.30 A. M., under Section 307 of the Penal Code for attempting to commit the murder of P.W.I Dip Narayan Yadav and P.W. 4 Ambika Yadav at the same place and time of occurrence and sentenced to imprisonment for life and rigorous imprisonment for five years for the said two offences respectively. They have also been Convicted under Section 27 of the Arms Act and sentenced to rigorous imprisonment for five years. The sentences have been ordered to run concurrently.
2. The prosecution case, as stated by P.W. 7 Kapildeo Yadav in his fardbayan lodged before P.W. 11, S.I. Rajendra Prasad on 8-9-82 at 11.30 A. M. may briefly be set out as follows. In the early hours of the date of occurrence i.e. 8-9-82 there had been exchange of words between P.W. 6 Ramdeo Yadav and co-accused Surendra Yadav (who died during course of trial) over taking of boat for going across river to Pipra. At about 10.30 A. M. when the informant was at the betel shop of Baleshwar Yadav, he saw altercation between appellant Navin Yadav, the said Surendra Yadav on the one side and P.W. 6 Ramdeo Yadav and deceased Jorabar Yadav on the other. The informant tried to intervene. In the meantime, on the call of Surendra Yadav, appellant Navin Yadav brought the gun of Ambika Yadav (father of the said Surendra Yadav). Appellant Sadanand Yadav arrived there with a country made pistol. Surendra Yadav also took a country made pistol from one of his associates. Jorabar Yadav tried to run away. However, no sooner he reached the other side of the road, the appellants and Surendra Yadav started firing on him. Jorabar Yadav fell down on the spot. Thereafter, the assailants left the place. The informant and other witnesses reached the spot and found Jorabar Yadav dead. While they were making arrangements to take the dead body to the police station P.W.I 1 S.I. Rajendra Prasad arrived there. He recorded the fardbayan of the informant at about 11.30 A. M. as stated above.
3. At the trial, which followed the submission of charge-sheet against the appellants and the said Surendra Yadav and commitment, the prosecution examined altogether 11 witnesses to prove the charges. The array of witnesses includes P.W. 1 Dip Narayan Yadav and P.W. 4 Ambika Yadav said to have sustained injuries in course of aforesaid occurrence. P.W. 3 Shiban Yadav, P.W. 5 Bishundeo Yadav, P.W. 6 Ramdeo Yadav, besides the informant P.W. 7 Kapildeo Yadav, were also examined as eye-witnesses to the occurrence. P.W. 2 Nandlal Yadav was examined as hear-say witness who reached the place after the incident was over. Dr. Ramanand Kumar, who held autopsy on the dead body of the deceased Jorabar Yadav was examined as P.W. 8. Dr. Jagarnath Pd. Sinha, who examined the injuries on the person of P.W. 1 Dip Narayan Yadav and P.W. 4 Ambika Yadav and granted injury reports was examined as P.W. 10.1. 0. Rajendra Prasad was examined as P.W. 11. P.W. 9 Shrikant Pd. Yadav was examined as a formal witness who proved the signature of one Nand Kishore Yadav and that of his own on the Inquest Report.
4. Although the relationship of witnesses with the deceased is ordinarily of little consequence in view of the settled legal position that the conviction can be based on the testimony of even persons who are related to the deceased subject to the test of reliability, in fairness to the appellants, the relationship of prosecution witnesses examined in this case may be mentioned as follows. P.W. 3 Shiban Yadav, P.W. 5 Bishundeo Yadav and P.W. 6 Ramdeo Yadav are full brothers, P.W. 7 Kapildeo Yadav is their cousin. P.W. 2 Nandlal Yadav is full brother of deceased Jorabar Yadav and also cousin of P.W. 4 Ambika Yadav. Deceased Jorabar Yadav is said to be Gotia of P.W 7 and hence Gotia of P.W. 3 Shiban Yadav, P.W. 5 Bishundeo Yadav and P.W. 6 Ramdeo Yadav as well. P.W. 1 appears to be Bhaginman of deceased Jorabar Yadav.
5. It is the specific case of the appellants that the deceased Jorabar Yadav had been killed by unknown persons in the night of 7/8-9-82 whose dead body was found at the alleged place of occurrence in the morning. The informant and other prosecution witnesses, however, in order to feed fat their grudge and enmity implicated them in the crime. They examined D.W. 1 Tetar Yadav and D.W. 2 Bhumi’Yadav to prove their case in this regard.
6. Mr. Prakash Narain Pandey, learned counsel for the appellants referred to the finding of P.W. 8 Dr. Ramanand Kumar in his post mortem report (Ext. 2) and his evidence in Court and submitted that the fact that the Doctor found rigor mortis in the ‘extremities’ of the dead body of the deceased in course of the autopsy at 5.30 P. M. suggests that rigor mortis was in the last stage of disappearance and, therefore, it is unlikely that the deceased would have died at 10.30 A.M. i.e. within seven hours of the autopsy. He pointed out that the process of appearance and disappearance of rigor mortis in different parts of the body has a set pattern. It appears in the extremities in the last and, likewise, also disappears therefrom in the last. Hence, existence of rigor mortis only in the extremities, suggesting that it was in the last stage of disappearance, improbabilises the prosecution case regarding the time of death and, therefore, the occurrence itself. In this connection, he referred to Modi’s Medical Jurisprudence and Toxicology.
7. Mr. Lala Kailash Behari Prasad, learned counsel for the State, submitted that sign of rigor mortis cannot be decisive factor to determine the time of death which depends on variety of factors. He also submitted that medical evidence cannot determine the fate of criminateases. And if there be any discrepancy, it is the ocular evidence which is to be preferred to the medical evidence of the doctor. Since in the present case, the eye witnesses have given a consistent account of the occurrence, the Court should not give much weight to the medical evidence, much less prefer it to the ocular evidence.
8. In view of the controversy at the Bar we have consulted, apart from Modi’s Medical Jurisprudence and Toxicology, Taylor’s Principles and Practice of Medical Jurisprudence and Jhala & Raju’s Medical Jurisprudence (by Dr. R. K. Jhala and V. B. Raju). It would be useful to refer to the opinion of the learned authors as follows. Modi in his Medical Jurisprudence (21 st Edition at page 171) writes,
Rigor mortis first appears in the involuntary muscles and then in the voluntary. … In the voluntary muscles rigor mortis follows a definite course. It first occurs in the muscles of the eyelids, next in the muscles of the back of the neck and lower jaw, then in those of the front of the neck, face, chest and upper extremities and lastly extends downwards to the muscles of the abdomen and lower extremities. Last to be affected are the small muscles of the fingers and toes. It passes off in the same sequence.
(Emphasis added)
Taylor in his book (13th Edition at page 143) under the caption ‘The order in which rigor appears’ states :-
As a rule, cadaveric rigidity first appears in the muscles of the face, neck and trunk; it then takes place in the muscles of the upper extremities and lastly in the legs…In regard to its disappearance the muscles of the lower extremities will often be found rigid, while those of the trunk and upper extremities are again in a state of relaxation. It appears later and lasts longer in the lower extremities than in other parts of the body.
(emphasis added)
In Jhala and Raju’s Medical Jurisprudence (6th Edition at pages 256-257) it has been stated :-
Rigor mortis is due to rigidity of the muscles. It appears both in the voluntary as well as involuntary muscles, its appearance and disappearance in various muscles follows a pattern. It is apparent first in the region of head, face, neck, eyelids and lower jaw. It last shows its appearance in the lower extremities. Hence if rigor mortis is present in lower extremities, it can safely be opined that it is present all over…After the rigor mortis has set in the whole body (as confirmed from its presence in lower extremities, no specific opinion is possible till the time it starts disappearing i.e. after about 18 hours.
9. It would, thus, appear that all the authorities on the subject are unanimous in their opinion that rigor mortis sets in and reaches the ‘extremities’at the end and that it follows the same pattern both in the matter of appearance and disappearance. While we are to accept the submission of learned counsel that presence of rigor mortis by itself cannot be decisive of the time of death, we find it difficult to believe that rigor mortis would be found only in the extremities of the body within seven hours of the death. It is true that on the basis of presence of rigor mortis, no opinion can be given with mathematical precision regarding the time of death. At the same time, in view of the undisputed position regarding the ‘course’ of appearance and disappearance of rigor, its presence only in the extremities does provide a sound basis to find out the probability or otherwise of the prosecution case regarding time of death. The process of appearance and disappearance of rigor mortis may take relatively shorter and longer time but it cannot be that within seven hours time it would disappear from the other portions of the body like head, face, neck and abdomen and remain only in the extremities.
10. We may also point out, in this connection, the distinction between the objective finding of the doctor and his opinion based on such objective finding. Where the doctor finds lacerated wound on the dead body and opines that the same had been caused by hard blunt substance, it is open to Court to take a different view on the basis of reliable ocular evidence and hold that the wound in question was caused by fire-arm and not hard blunt substance. But it is not possible to read lacerated wound as incised wound. In other words, so far ‘opinion’ is concerned, it may be possible, in an appropriate case to take a different view, but it is not possible to say that the objective finding is not correct, unless it is challenged on the basis of some reliable evidence. We put a pointed question to the State counsel as to whether and on what basis it is possible for the Court to ignore the finding of the doctor that rigor mortis was found in the extremities, counsel had no plausible answer to offer. We may in this connection also mention that the aforesaid finding of the doctor has not been challenged by the prosecution at any stage.
11. We are conscious of the judicial pronouncements that in case of discrepancy between medical evidence and ocular evidence, subject to the test of reliability, it is the latter which is to prevail. But in order to find acceptance over medical evidence, the ocular evidence has to be free from any inherent improbability and contradictions. So-called consistent evidence may as well be tutored evidence. If the alleged eye-witnesses give a tutored but ‘consistent’ version of occurrence, the Court is not expected to silently accept the same and, as pointed out above, by way of illustration, to read lacerated wound as incised wound in a particular autopsy report merely because the eye-witnesses say so.
12. Adverting to the ocular evidence on record it is doubtful if the alleged eye-witnesses had seen the occurrence. In paragraph 8 of his evidence P.W. 1 Dip Narayan Yadav stated that after the incident was over the informant had made queries from him regarding the names of the assailants. Similar queries were made to him by P.W. 2 Nandlal Yadav, P.W. 5 Bishundeo Yadav and P.W. 6 Ramdeo Yadav, which suggests that they were not present at the place of occurrence. It is significant that P.W. 1 did not mention the name of P.W. 4 Ambika Yadav in this connection.
13. As regards the evidence of the alleged injured witnesses P.W. 1 Dip Narayan Yadav and P.W. 4 Ambika Yadav, it is noteworthy that the name of neither of them was disclosed by the informant either in the fardbayan or in his evidence in Court although, as indicated above, the informant had occasion to talk to P.W. 1 Dip Narayan Yadav and had made queries about the occurrence after the incident was over. Second important aspect about these two witnesses is that both of them got their injuries examined by P.W. 10 Dr. Jagarnath Pd. Sinha on the next date i.e. 9-9-82 at 1 p.m. Counsel for the State in this regard submitted that the fact that P.W. 1 and P.W. 4 had sustained injuries should not be doubted, for injuries on their person had been found by the I.O. soon after he reached the place of occurrence at about 11.30 a.m. He, in fact, it was pointed out, had also prepared injury reports (Exts. 3. and 3/1) and forwarded them to the doctor for medical examination of the injuries. Counsel pointed out that both P.W. 1 and P.W. 4 had gone to the dispensary for medical examination of their injuries but the same could not be done as the doctor was not available. According to the State counsel, thus, the non-examination of the injuries on the same day should not create any doubt about the prosecution case in that regard.
14. No doubt, there is some explanation of the non-examination of the injury on 8-9-82. It is, however, significant to mention in this connection that no such statement was made to the Investigating Officer regarding the nonavailability of the doctor on 8-9-82, although as per the evidence of the Investigating Officer, he ‘ had remained in the village for the whole day and night on 8-9-82. Besides, P.W. 10 Dr. Jagarnath Pd. Sinha stated in his evidence that neither P.W. 1 nor P.W. 4 had appeared before him for examination of their injuries on 8-9-82. Be that as it may, the fact that the injuries Were found on the person of either P.W. 1 or P.W. 4 cannot be said to be conclusive of the fact that they had sustained the injuries in question in course of the same occurrence in which the deceased had died. It would not be out of place to mention here while the injury on the person of P.W. 1 was found to be superficial in nature, those on the person of P.W. 4 were found to be simple in nature.
15. Counsel for the appellants highlighted the fact that not only the informant had enmity with the appellants, but the deceased also had a criminal background. In this connection it was pointed out that the informant P.W. 7 Kapildeo Yadav had contested the Panchayat election for the office of Mukhiy’a against Ambika Yadav, father of co-accused Surendra Yadav, in the year 1978 which he lost and Ambika Yadav won.
16. We have perused the evidence and we find that it is an admitted position that P.W. 7 and the said Ambika Yadav, father of co-accused Surendra Yadav, since dead, had contested the Panchayat election. It also appears to be rather an undisputed position that they are involved in several cases. It would not be off the record to say that not only the members of the prosecution party but the appellants also appear to have criminal antecedents which leads us to think that the deceased might have been killed by some unknown people in the night preceding the alleged date of occurrence and taking advantage of the situation the prosecution implicated the appellants in the crime, as pleaded by them. In the facts and circumstances of the case, in our opinion, the appellants are entitled to benefit of doubt.
17. In the result, this appeal is allowed, the conviction and sentences awarded to the appellants under the impugned Judgment and order are set aside. The appellants are acquitted of the charges. They are on bail. Their liability under the bail bonds stands discharged.