MACHINDRAversusSAJJAN GALFA RANKHAMB & ORS.

                         [2017] 3 S.C.R. 363


                        MACHINDRA                                      'A
                                v.
             SAJJAN GALFA RANKHAMB & ORS.
                 (Criminal Appeal No.1794 of2013)
                        APRIL 19, 2017                                  B
  .[PINAKI CHANDRA GHOSE AND R. F. NARIMAN, JJ.]
        Penal Code, 1860 - s.302 rlw s.34 - Murder - Parties are
 close relative_s gs t:espondent no. l is brother-in-{aw of appellant
 and respondent no.2 is the son of respondentno.1 -Allegation that C
 respondents no.1 & 2 killed son of appellanr- Respondents
 convicted by Trial court - But, acquitted by fligh Court - On appeal,
             1

 held:. There are. contradictions, in the depositions ofPW-4 and PW-
  10 and neither of them is 'eye-witness to the alleged incident~ -
 Prosecution had not examined 'one material witness in whose field
  the alleged incident occurred - PW-3, who is an alleged eye-witness D
  to the incident was not on cordial terms with respondent-accused,
·further he fled away from t~e. spot as per his deposition .and came
  to know about the death in the evening - Then there was six days'
  delay in lodging the FIR which remained unexplained throughout
  the trial - One last crucial fact is that opi~ion on the cause of E
  injuries was neither mentioned by doctor PW-6 in his deposition,
  nor in post-mortem report - Thus, not only actual but substantial
  doubts as to the guilt of the respondents .:.. No evidence as to how
  deceased.was killed and by whom - Therefore, no reason to interfere
  with findings of the High Court.
        Evidence - Medical evidence -Appreciation of - Held: Where F
 the medical evidence is such that it does not give any clear opinion.,· -
.·with respect to the injuries inflicted on the body of victim or deceased,
  as the case may be, the possibilities that the injuries .might have···
  been caused by; the accused are also ruled. out - Such medical ·
  evidence is also very important in assess,ing the testimony of eye- . G
  witnesses and in determining whether the testimony of eye-witnesses
  can be safely accepted.
      Evidence- Expert evidence '-Appreciation of - Held: ~xpert s
 opinion should be demonstr.ative and should be supported by
                                                                         H
                                               ..
364            SUPREME COURT REPORTS                      [2017] 3 S.C.R.


A     convincing reasons - If the report of an expert is slipshod,
      inadequate or cryptic, and information on similarities or
      dissimilarities is not available in the report of an expert then his
      opinion is of no value.
            Evidence - 'Burden of proof on the prosecution' - Principles
B     discussed.
            Dismissing the appeal, the Court
        HELD: 1.1 There are contradictions in the depositions of
  PW·4 and PW-10 and none of them is eye-witness to the alleged
  incident. Furthermore, PW-20 has proved in his deposition that
C he medically examined respondent Nos.1 & 2 on 21.04.2007 and
  not on 22.04.2007 when they were arre.sted. The prosecution
  had not examined one material witness in whose field the alleged
  incident occurred. Non-examination of this material witness, who
  could have unfolded the relevant facts of the case necessary for
D adjudication, makes the prosecution version doubtful. It is also
  pertinent to mention here that PW-3, who is an alleged eye-
  witness to the incident, had in his deposition admitted that he
  passed the information on phone to one person who was never
  examined by the Trial Court. After p_erusing the deposition of
  PW-3, it is noticed that this witness and the respondent accused
E were not on cordial terms as their cattle used to enter the fields
  of one anothe~ .and chapter case was filed against the wife of
  accused on that count. [Para 12) .,
                                      [370-E-G)
           1.2 It is further noticed that there was six days' delay in
     lodging the FIR which remained unexplained throughout the trial
  F. and in the appeal before the High Court. One last fact which is
     imperative and crucial to be mentioned here is that opinion on
     the cause of injuries was neither mentioned by doctor PW-6 in
     his deposition, nor in post-mortem report. In criminal cases
     pertaining to offences against human body, medical evidence has
. G decisive role to play. A medical witness who performs a post-
     mortem examination is a witness of fact though he also gives an -
  ._ opinion on certain aspects of the case. [Para 131(370-H; 371-A-
      B)
         2.1 In the post-mortem report, cause of injuries was not
 H stated nor was any opinion formed to create independent
    MACHINDRA v. SAJJAN GALFA RANKHAMB & ORS.                      365


testimony. A vital role is played by the expert which is simply a A
conclusion drawn from a set of facts coming to his knowledge
and observation. Expert's opinion should be demonstrative and
should be supported by convincing reasons. Court cannot be
expected to surrender its own judgment and delegate its authority
to a third person, however great. If the report of an expert is
slipshod, inadequate or cryptic, and information on similarities B
or dissimilarities is not available in the report of an expert then
his opinion is of no value. Such opinions are often of no use to the
court and often lead to the breaking of very important links of
prosecution evidence which are led for the purpose of prosecution.
Therefore, the prosecution has failed to prove that death was C
caused clue to the injuries inflicted by the recovered weapons.
 (Para 15)(372-A-C)
       2.2 Furthermore, looking at the facts and circumstances of.
this case, PW-3, the eye-witness to the incident, has neither stated
as to when the accused came with alleged weapons nor extended D
any help to the deceased. Rather, he fled away from the spot as
per his deposition, and came to know about the death of the
deceased in the evening. This peculiar fact of the case completely
over-rides the direct evidence rule, because ultimately
probabilities creating doubts with respect to the cause and modus-
operandi of offence increase when alleged eye-witness flees away E
from the place of occurrence. Where the medical evidence is
 such that it does not give any clear opinion with respect to the
injuries inflicted on the body of victim or deceased, as the case
 may be, the possibilities that the injuries might have been caused
 by the accused are also ruled out. Such medical evidence is also F
 very important in assessing the testimony of eye-witnesses and
 in determining whether the testimony of eye-witnesses can be
 safely accepted. Moreover, it is settled law of criminal
 jurisprudence that "a person has, no doubt, a profound right not to
 be convicted of an offence which is not established by the evidential
 standard of proof beyond reasonable doubt." In the facts and G
 circumstances of the present case, there are not only actual but
 substantial doubts as to the guilt of the respondents. Therefore,
 there is no evidence as to how the deceased was killed and by
 whom. The unfortunate man succumbed to injuries but the
  substantial doubts confer a right upon the accused-respondents H
. 366            SUPREME COURT REPORTS                           [2017] 3 S.C.R.


  A to be held not guilty. [Para 16][372-D-H; 373-AJ
               Yogesh Singh v. Mahabeer Singh & Ors. AIR 2016 SC
             . 5160 : [2016] SCR 713; State of U.P. v. Krishna Gopal
               & Anr. (1988) 4 SCC 302 : [1988) 2 Suppl. SCR
               391 - relied on.
  B           Smt. Nagindra Bala Mitraand v. Sunil Chandra Roy &
              Am: (1960] 3 SCR 1 - referred to.
                                Case Law Reference
              (2016) SCR 713                     . relied on             Para 10
  c           [1960) 3 SCR .1                      referred to           Para 13
              (1988] 2 Suppl. SCR 391              relied on             Para 14
             CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
        No.1794of2013.
  D          From the Order dated 24.02.2011 ·of the High Court of Bombay,
        Bench atAurangabad in Criminal Appeal No. 333 of2010.
             Rajat Kapoor, Ms. Surabhi Guleria, Ms. Pushpa Devi Sikri and
        Sudhanshu S. Choudhari, Advocates for the appellant.
             M. Y. Deshmukh, Sushi! Karanjkar, Shakti Pandey, Kuna! A.
  E     Cheema, Yogesh K. Ahirrao and Nishant Ramakantrao Katneshwarkar,
        Advocates for the respondents.
              The Judgment of the Court was delivered by
             PINAKI CHANDRA GHOSE, J. 1. The instant appeal is
  F   directed against the judgment and order dated 24th February, 2011 passed
      by the High Court of Judicature of Bombay, Bench at Aurangabad, in
      Criminal Appeal No.333 of20 I0, whereby the High Court while allowing
      the appeal of respondent Nos.1 & 2 herein, set-aside the judgment and
      order of convictiQn and sentence dated 24.08.2010 passed by learned
      Sessions Judge, Osmanabad, and acquitted them of the offence punishable
  G · under Section 302 read with Section 34 of the Indian Penal Code (for
      short "IPC").
               2. Brief facts necessary for disposal of the present appeal are as
        follows:
              Parties herein are close relatives as respondent No. I is the brother-
  H
    MACHINDRA v. SAJJAN GALFA RANK.HAMB & ORS.                          • 367
            [PIN AKI CHANDRA' GHOSE, J.]
                 I
 in-law of the appellant herein (his sister having married to the appellant) A
 and respondent No.2 is the son of respondent No.l. It appears that
appellant had purchased 3 acres of land ft:otn his father-in-law (father
 of respondent No. I) about 20 years before the date of occurrence. On
 account of the said transaction, respondent No. I was not happy, which
 is ;stated to be the alleged enmity between the parties, Appellant had two. B
 sons, namely, Gorakh and Dattatreya. On 21.04.2007, a complaint was
 lodged by the appellant at Osmanabad Rural Police Station stating that
 the complainant, his wife and other relatives had gone to attend the
 marriage of his granddaughter Rupabai, while his younger son Dattatreya
 remained at home. After attending the marriage, when they came back,
·one Balu Shekha Solawar told the complainant that accused Sajjan and C
  his son Kakasaheb had killed Dattatreya in the field ofSipijay Sambhaji
  Jethithor. The complainant immediately rushed towards the spot and
  found the dead body ofDattatreya lying on the field. The villagers ·who
  were present on the spot told the complainant that accused killed
  Dattatreya. On the basis of the complaint, Osmanabad Rural Police
                                                                             0
  Station registered the case as Crime No.36 of 2007 under Section 302
  read with Secti0n 34 of IPC against respondent Nos: l & 2 herein, who
  are none other than maternal uncle of deceased arid his son for causing
  death of the deceased with stick and Khil (yoke pin). After completion
  of the investigation by the Police InspectorofOsmanabad Police Station
  (PW-19), final report wa:s submitted before the Court of Chief Judicial E
  Magistrate, Osmanabad. Since the offenec was exclusively triable by
  the Court of Sessions, the case was committed to the Court of learned
  Sessions Judge, Osmanabad. Twenty witnesses were examined on
  prosecution side and five witnesses were examined on defence side.
  The learned Sessions Judge vide his judgment and order dated 24.08.20 l 0,
   convicted respondent Nos. I and 2 hereinfor    offence punishable under F
   Section 302 read with Section 34 ofIP<;:,and sentenced them to suffer
   imprisonment for life and to pay a fi~ ofRs.l,000/- each, in default to
   make paymentof fine, to suffer further ~risonment for two months.
       3. B~ing aggrieved by the judgment IU1d order of conviction and
 sentence passed by the learned Sessions Judge, OStnanabad, the accused G
 respondents preferred Criminal Appeal No,333 of201-0 before the High
 Court ofJuqicature of Bombay, Bench atAUrangabad. The High Court
 allowed the 'said appeal, set·aside the jud~nt and order"Of conviction
 and sentence dated 24,08.2010 passed l>y learned Sessions Judge,
                                                                            H
368             SUPREME COURT REPORTS                            [2017] 3 S.C.R.


A Osmanabad, and acquitted respondent Nos.1 & 2 of the offence
  punishable under Section 302 read with Section 34 of !PC. Hence, the
  present appeal by the father of the deceased who is the complainant in
  this case.
             4. We have heard Mr. Rajat Kapoor, learned counsel appearing
B     for the complainant-appeliant herein and Mr. M.Y. Deshmukh, learned
      counsel appearing for respondent Nos. I & 2 herein, at length. We have
      also perused the judgments of both the High Court and the Trial Court as
      also the evidence on record:
         S. Learned counsel appearing for the appellant submitted that the
c High Court failed to consider the autopsy conducted on the body of
  deceased wherein compound fracture of skull over left temporal bone
  was found which shows the gravity of the offence. He further s1.:bmitted
  that the recovery of weapon of offence made at the instance of the
  accused-respondents was also ignored by the High Court. Moreover,
  the High Court erred grossly in holding that testimonies of PW-4 and
D PW-10 falsify each other.
         -- 6. Per contra, learned counsel appearing for the respondents
      submitted that PW-4 and PW-10 ought to have been disbelieved being
      interested witness since both of them were tenants of the land owned by
      deceased. Moreover, considering the gravity of head injuries, if minutely
E     perused, it is not possible for any person to have survived for five minutes.
      He further submitted that the evidence of the alleged eye-witnesses, i.e.
      PW-3, PW-4 and PW-10, is totally concocted and not supported by
      medical evidence because PW-6 - Doctor has not mentioned the probable
      age and cause of the injuries. Furthermore, the Investigating Officer
F     (PW" 19) has nowhere in his examination before the Trial Court mentioned
      about any eye-witness to the incident. As per the admission of said
      Investigating Officer, he was informed about the incident by some
      unknown person. If this is the case, then the testimony of eye-witnesses
      appears to be false and unbelievable. ·
G_           7. Learned counsel for the respondents concluded his arguments
      stating that the prosecution story is again doubtful for two more reasons:
      (i) PW-3 had informed about the alleged incident to one Chandrakant
      Gophane, however, the prosecution had not examined him; (ii) There
      was no propriety in sending the accused for medical examination on
      21.04.2007, when admittedly the accused were arrested on 22.04.2007
H
    MACHINDRA v. SAJJAN GALFA RANKHAMB & ORS.                               369
            [PINAKI CHANDRA GHOSE, J.]

which is proved by testimony of PW-19 and corroborated by the testimony A
;lf PW-20.
        8. We have noticed that the Trial Court after relying mainly upon
the tt·stimony of PW-3, PW-4 and PW-10, found that the prosecution
has proved its case beyond reasonable doubt, corroborated by the medical
evidence of doctor (PW-6) who conducted the autopsy of the deceased         B
and by the report of chemical analyzer. It was held that the respondents
with common intention to kill the deceased had caused injuries with stick
and Khil, to which the deceased succumbed later on.
      9. The High Court has, however, reversed the order of conviction
while holding that no reliance could be placed on the evidence of PW-3.     c
The High Court further held that both PW-4 and PW-10 had falsified
evidences of each other. Non-examination of weapon recovered from
the place of incident by the Chemical Analyzer also made the case
doubtful as per the opinion of the High Court.
       10. Before answering the question that whether the High Court D
was correct in allowing the appeal of the respondents herein, we wish to
supply emphasis on one of the cardinal principles of criminaljurisprndence
pertaining to the 'burden of proof on the prosecution' in criminal cases.
This Court has in a recent judgment in the case of Yogesh Singh Vs.
Mahabeer Singh & Ors., AIR 2016 SC 5160 = 2016 (10) JT 332,
reiterated the said principle in the following words:                      E
      "It is a cardinal principle of criminal jurisprudence that the
      guilt of the accused must be proved beyond all reasonable
      doubts. However, the burden on the prosecution is only to
      establish its case beyond all reasonable doubt and not all
      doubts. Here, it is worthwhile to reproduce the observations          F
      made by Venkatachaliah, J., in State of UP. Vs. Krishna Gopal
      and Anr., (1988)4 SCC 302:
       '25 . ... Doubts would be called reasonable if they are free
      from a zest for abstract speculation. Law cannot afford any
      favourite other than truth. To constitute reasonable doubt, it G
       must be free from an overemotional response. Doubts must be
      actual and substantial doubts as to the guilt of the accused
      person arising from the evidence, or from the lack of it, as
       opposed to mere vague apprehensions. A reasonable doubt
       is not an imaginary, trivial or a merely possible doubt; but a H
370            SUPREME COURT REPORTS                          [2017] 3 S.C.~.


A           fair doubt based upon reason and common sense. It must grow
             out of the evidence in the case.
            26. The concept of probability, and the degrees of it, cannot
            obviously be expressed in terms of units to be mathematically
            enumerated as to how many of such units constitute proof
B           beyond reasonable doubt. There is an unmistakable subjective
            element in the evaluation of the degrees of probability and
            the quantum of proof Forensic probability must, in the last
            analysis, rest on a robust common sense and, ultimately on
            the trained intuitions of the judge. While the protection given
            by the criminal process to the accused persons is not to be
c           eroded, at the same time, uninformed legitimization of
          · trivialities would make a mockery of administration of criminal
            justice."
         11. Keeping in mind the aforesaid position of law, we shall now
  examine the arguments advanced and materials on record to see whether
D the findings of the High Court call for interference in the facts and
  circumstances of the present case.
            12. We have noticed that there are contradictions in the depositions
     of PW-4 and PW-10 and none of them is eye-witness to the alleged
     incident. Furthermore, PW-20 has proved in his deposition that he
 E medically examined respondent Nos.1 & 2 herein on 21.04.2007 and not
     on 22.04.2007 when they were arrested. It is a matter of surprise to us
     that prosecution had not examined one Sanjay Jetithor in whose field the
     alleged incident occurred. Non-examination of this material witness, who
     could have unfolded the relevant facts of the case necessary for
 F · adjudication, makes the prosecution version doubtful. It is also pertinent
     to mention here that PW-3, who is an alleged eye-witness to the incident,
     had in his deposition admitted that he passed the information on phone to
     one Chandrakant Pandurang Gophane who was never examined by the
     Trial Court. After perusing the deposition of PW-3, we have noticed that
     this witness and the respondent accused were not in cordial terms as
 G their cattle used to enter the fields of one another and chapter case was
     filed against the wife of accused on that count.·
             13. On perusal of the record, it has further been noticed by us that
      there was six days' delay in lodging the FIR which remained unexplained
      throughout the trial and in the appeal before the High Court. One last
 H
    MACHINDRA v. SAJJAN GALFA RANKHAMB & ORS.                               371
            [PINAKI CHANDRA GROSE, J.]

fact which is imperative and crucial to be mentioned here is that opinion A
on the cause of injuries was neither mentioned by doctor PW-6 in his
deposition, nor in post-mortem report. In criminal cases pertaining t.o
offences against human body, medical evidence has decisive role to play.
A medical witness who performs a post-mortem examination is a witness
of fact though he also gives an opinion on certain aspects of the case. B
This proposition of law has been stated by this Court in Smt. Nagindra
Bala Mitraand Vs. Sunil Chandra Roy & Anr., 1960 SCR (3) 1, as
follows:
      "The value of a medical witness is not merely a check upon
      the testimony of eye witnesses; it is also independent testimony C
      because it may establish certain facts quite apart from the
      other oral evidence. If a person is shot at a close range, the
      mark of tattooing found by the medical witness would draw
      that the range was small, quite apart from any other opinion
      of his. Similarly, fractures of bones, depth and size of the
      wounds would show the nature of the weapon used. It is wrong D
      to say that it is only opinion evidence; it is often direct
      evidence of the facts found upon the victims p~rson. "
     14. Further it was observed in the case of State ofU.P.. Vs. Krishna
Gopal & Anr., (1988) 4 SCC 302, in the following words:
       "24. It is trite that where the eye-witnesses' account is found      E
      credible and trustworthy. medical-opinion pointing to
      alternative possibilities is not accepted as conclusive.
      Witnesses, as Bentham said, are the eyes and ears of justice.
      Hence the importance and primacy of the orality of the trial-
      process. Eye-witnesses' account would require a careful               F
      independent assessment and evaluation for their credibility
      which should not be adversely prejudged making any other
      evidence, including medical-evidence, as tiie sole touch-stone
      for the test of such credibility. The evidence must be tested
      for its inherent consistency and the inherent probability of
      th<! story; consistency with the account of other witnesses held      G
      to be credit-worthy; consistency with the undisputed facts;
       the 'credit' of the witnesses; iheirperformance in the witness-
       box; their power of observation etc. Then the probative value
       of such evidence becomes eligible to be put into the scales
      for a cumulative evaluation. "                                ·
                          ~            .                                    H.
372            SUPREME COURT REPORTS                         (2017] 3 S.C.R.


A         15. But looking at the post-mortem report, cause of injuries was
   not stated nor was any opinion formed to create independent testimony.
   We would like to emphasize on the vital role played by opinion of the
   expert which is simply a conclusion drawn from a set of facts coming to
   his knowledge and observation. Expert's opinion should be demonstrative
 B and should be supported by convincing reasons. Court cannot be expected
   to surrender its  own judgment and delegate its authority to a third person,
   however great. If the report of an expert is slipshod, inadequate or cryptic ·
   and information on similarities or dissimilarities is not available in the
   report of an expert then his opinion is of no value. Such opinions are
   often of no use to the court and often lead to the breaking of very important
 C links of prosecution evidence which are led for the purpose of prosecution.
   Therefore, we are of the considered opinion that the prosecution has
   failed to prove that death was caused due to the injuries inflicted by the
   recovered weapons.
          16. Furthermore, looking at the facts and circumstances of this
 D case, we have noticed that PW-3 the eye-witness to the incident has
   neither stated as to when the accused came with alleged weapons nor
   he extended any help to the deceased. Rather he fled away from the
   spot as per his deposition, and came to know about the death of the
   deceased in the evening. This peculiar fact of the case completely over-
   rides the direct evidence rule, because ultimately probabilities creating
 E doubts with respect to the cause and modus-operandi of offence
   increases when alleged eye-witness flee away from the place of
   occurrente. Where the medical evidence is such that it does not give
   any clear opinion with respect to the injuries inflicted on the body of
   victim or deceased, as the case may be, the possibilities that the injuries
 f might have been caused by the accused are also ruled out. Such medical
   evidence is also very important in assessing the testimony ofeye-witnesses
   and in determining whether the testimony of eye-witnesses can be safely
   accepted. Moreover, it is settled law of criminal jurisprudence as has
   been recognized by this Court instate ofU.P. Vs. Krishna Gopal, (supra)
   that "A person )1as, no doubt, a profound right not to be convicted
 G ·of an offence which is not established by the evidential standard of
    proof beyond reasonable doubt." After meticulously scrutinizing the
      facts and circumstances of the present case, and keeping in mind the
      proposition of law as observed in Yogesh Singh Vs. Maltabeer Singh
      & Ors. (supra), we are of the considered opinion that there are not only
 H
    MACHINDRA v. SAJJAN GALFA RANKHAMB & ORS.                               373
            [PINAKI CHANDRA GHOSE, J.]

actual but substantial doubts as to the guilt of the respondents herein. A
We are, therefore, unable to find any evidence as to how the deceased
was killed and by whom. The unfortunate man succumbed to injuries
but the substantial doubts, mentioned above, confer a right upon the
accused-respondents to be held not guilty.
       17. Thus, we see no reason to interfere with the findings of the B
High Court as, in our opinion, the High Court after correct appreciation
of evidence has rightly acquitted the accused-respondents, giving them
benefit of doubt. This appeal is devoid of any merit which is, accordingly,
dismissed.
                                                                            .c
Ankit Gyan                                              Appeal dismissed.