Holding

Bhagirath is guilty of murder under Section 302 read with Section 34 of the IPC; the benefit of doubt does not apply and his conviction is restored.

Summary

The father, Bhagirath, and his two nephews were convicted by the Sessions Court for the murder of Bhagirath's blind son, Subhram, under Section 302 read with Section 34 of the IPC. The High Court upheld the nephews' convictions but acquitted Bhagirath, invoking a "benefit of doubt" despite reliable eye‑witness testimony that he held the victim's legs while the nephews slit his throat. The State appealed, arguing that the medical evidence did not preclude the possibility of two successive blows and that the father shared the common intention of the murder. The Supreme Court held that medical opinions are not conclusive and must be tested, that the eye‑witness accounts were reliable, and that the prosecution proved beyond reasonable doubt that Bhagirath participated in the act, thereby sharing common intention. Consequently, the Court set aside the High Court’s acquittal, restored Bhagirath’s conviction and life sentence, and ordered his re‑imprisonment.

Issues considered

The applicability of Section 34 IPC (common intention) to the father’s participation in the murder.
Whether the doctrine of benefit of doubt can be invoked given the reliability of eye‑witness testimony.
The evidentiary weight and testability of medical opinions under Section 45 of the Evidence Act.
The proper interpretation of "reasonable doubt" in criminal trials.

Legislation cited

Subjects

murdercommon intentionbenefit of doubtreasonable doubtmedical evidenceeye witnessSection 302 IPCSection 34 IPCland dispute

Judgment

~·
STATE OF HARYANA A
v.
BHAGIRA TH AND ORS.

MAY 12, 1999

[K.T. THOMAS AND D.P. MOHAPATRA, JJ.] B

Indian Penal Code, 1860-Section 302134-Murder-Common
Intention-Proof of-Eye witnesses reliable-Motive-Land dispute-Father
of deceased holding legs of deceased when his nephew cut his throat-All
three ran away together-Held, father of deceased shared common intention c
with other two assailants-All three liable to be convicted u/s 302134 /PC.

Evidence Act, 1872-Section 45-Medical evidence-Evidentiary
value-Held, such opinion must be tested by ·Court-If opinion given by
doctor is not consistent with probability-Court has no liability to go by
that opinion-However, due weight must be given to medical opinion. D

Criminal Law-Benefit of doubt-Principle of-Considerations for
Court-Held, doctrine of benefit of doubt can be invoked when there is
reasonable doubt regarding guilt ofaccused-Expression reasonable doubt,-
Definition and concept-Discussed E
Respondent, father of the deceased and his two nephews were convicted
by the Sessions court u/s 302 r/w S. 34 Indian Penal Co(le. In appeal, the
High Court acquitted father of the deceased but confirmed the conviction and
sentence of other two accused. This appeal by special leave had been filed
against the acquittal of the respondent. F
Proser'ltion case was that the deceased, congenitally blind, aged 33
years old was living with his mother separately as the respondent accused
and his wife became estranged with each other long back; that there was land
dispute between deceased and his father was living with his two nephews
G
since the separation; that one day when deceased was in a nearby house, his
____j-
father along with his two nephews reached there, father held a grip on the
legs of his son while two other accused whacked on his neck with Kulhari.
The incident was witnessed by PW 4, an old woman of that house and her
daughter-in-law. They had come there on hearing the sounds of death pangs
of the victim. Sessions Court placing complete reliance on the evidence of H
529
530 SUPREME COURT REPORTS [1999] 3 S.C.R.

A these eye witnesses held the three accused guilty u/s 302/34 IPC and
convicted and sentenced them for imprisonment for life. In appeal, the High
.....
Court concurred with the Sessions Court regarding the reliability or evidence
of the two eye witnesses and confirmed the conviction and sentence passed ~
on the two accused Hand K but acquitted father of the deceased, giving him
benefit of doubt, holding that he had not caused any injury.
B
In the State Appeal, the respondent argued that the injuries found in
the post mortem examination were not consistent with the testimony of the
eye witnesses as PWl stated that one incised wound was possibly by a single
blow by one weapon with some backward support and it was not the result
of two blows with two weapons, as alleged by the prosecution.
c
Allowing the State appeal, this Court

HELD : 1.1. The opinion given by a medical witness need not be the last
word on the subject. Such opinion shall be tested by the court If the opinion
is bereft of logic or objectivity, court is not obliged.to go by that opinion.
D After all opinion is what is formed in the mind of a person regarding a fact
situation. If one doctor forms one opinion and another doctor forms a different
opinion on the same facts it is open to the judge to adopt the view which is
more objective or probable. Similarly if the opinion given by one doctor is
not consistent with probability the court has no liability to go by that opinion
merely because it is said by the d~ctor. Of course, due weight must be given
E to opinions given by persons who are experts in the particular subject.
[536-C-D)

1.2. Looking at the width of the wound on the neck (4.5 cm) and its
length (14 ems) a doctor should not have ruled out the possibility of two
successive strikes with a sharp weapon falling at the same situs resulting .
F
in such a wide incised wound. If the doctor does not agree to the possibility -..
of causing such a wound the doctor should have put forth cogent reasons in
support of such opinion. But PW7 did not give any such reason for the Court
answer given by him that such an injury could not have been caused by two
strikes with the same weapon of the same type. (536-E-F)
G
1.3. Prosecution has proved with reasonable certainty that respondent
B was holding the legs of the deceased when his nephew cut his throat and
after finishing their work all the three ran away together. In the broad
spectrum of occurrence there is no scope to entertain even a semblance of
--
doubt that B would have shared common intention with the other two assailants.
H The Division Bench of the High Court had grossly erred in absolving B from
STATE OF HARYANA v. BHAGIRATH 531
the crime on a misplaced doubt which, in fact, did not arise at all. A
[536-G-H)

1.4. The High Court had failed to consider the implication of the
evidence of the two eye witnesses on the complicity of B particularly when
the High Court found their evidence reliable. Benefit of doubt was given to
B "as a matter of abundant caution." Unfortunately, the High Court did not B
point out this area where there was such a doubt. Any restraint by way of
abundant caution need nut be entangled with the concept of benefit of doubt
Abundant caution is always desirable in all spheres of human activities. But
the principle of benefit of doubt belongs exclusively to criminal jurisprudence.
The pristine doctrine of benefit of doubt can be invoked when there is C
reasonable doubt regarding the guilt of the accused. It is the reasonable
doubt which a conscientious judicial mind entertains on a conspectus of the
entire evidence that the accused might not have committed the offence, which
affords benefit to the accused at the end of the criminal trial. Benefit of doubt
is not a legal dosage to· be administered at every segment of the evidence,
but an advantage to be afforded to the accused at the final and after D
consideration of the entire evidence, if the judge conscientiously and
reasonably entertains doubt regarding the guilt of the accused.[534-B-D)
1.5. It is nearly impossible in any criminal trial to prove all elements
with precision. A criminal court could be convinced of the guilt only beyond
the range of a reasonable doubt. Of course, the expression "reasonable E
doubt" is incapable of definition. Modern thinking is in favour of the view
that proof beyond a reasonable doubt is the same as proof which affords
moral certainty to the judge. [534-E-F)

Shivaji Sahab Rao Bobade v. State of Maharashtra, [1974) 1SCR489
and Municipal Corporation of Delhi v. Ram Kishan Rohtagi, AIR (1983) SC F
67, relied on.

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
234of1992.

From the Jt:dgment and Order dated 10.10.90 of the Punjab & Haryana G
High Court in Crl. A.No. 508 of 1988.

Mrs. Rekha Pandey for Prem Malhotra for the Appellant.

Ms. Kalpana and K. Tripathi (A.C.) for the Respondents.

The following Judgment of the Court was delivered by : H
532 SUPREME COURT REPORTS [ 1999] 3 S.C.R.

A THOMAS, J. Every father is the best protector of his own children-
that is the order of human nature. But there had been freaks in the history
of mankind when father became killer of his own child. This case tells the
story of such a freak when Subhram -the 33 year old son of Bhagirath was
butchered by cutting the throat. As Subhram was congenitally blind perhaps
the only solace in the eerie episode seems to be that the victim would not
B have had any idea of the physiognomy of his murderers. Bhagirath and his
two nephews (Hanuman and Kheta) were convicted by the sessions court
under Section 302 read with Section 34 of the Indian Penal Code and the three
were sentenced to imprisonment for life. But the High Court, on appeal by the
three accused, acquitted Bhagirath and confirmed the conviction and sentence
C of his two nephews. State of Haryana has filed this appeal by special leave
against the acquittal of Bhagirath.

Backdrop of the prosecution story is the following:

Bhagirath and his wife Jamna have a son Subhram and a daughter
D (Naraini). Subhram though was born blind, was healthy and active and remained
a bachelor. Naraini was given in marriage to a pedagogue in Rajasthan (PW8
-Ram Sarup) and they were living separately at village Rawana. Bhagirath
and his brother Kanharam together had 32 acres of ancestral property. The
other two. accused (Hanuman and Kheta) are the sons of Kanharam. In a
E family arrangement the share of Subhram in the aforesaid 32 acres had been
settled as I/6th. Bhagirath and his wife Jamna became estranged with each
other long back, and they were living separately. Subhram was residing with
his mother Jamna ever-since the separation and Bhagirath was residing in the
house along with his nephews Hanuman and Kheta.

F Disputes arose between Subhram on the one side and Bhagirath ·and his
two nephe,~s on the other side regarding enjoyment of the land, perhaps the
accused would have thought that Subhram, being blind, might not get married
and so on his death the properties would revert back to the family. But at the
age of thirty three Subhram became desirous of married life and negotiations
G were on the move for finding out a suitable match for him. A couple of months
prior to his murder Subhram executed a mortgage of his share of the properties
to PWIO Prabhati for a sum of Rupees twenty two thousand. When Prabhati
tried to cultivate the mortgaged land it was resisted and that led to initiation
of proceedings under Section I07 of the Code of Criminal Procedure against
the three accused as well as against Subhram and Prabhati. In the meanwhile,
H Subhram filed a Civil Suit for partition of his share in the properties by metes
I
.-
~

STATE OF,HARYANA v. BHAGIRATH [THOMAS, J.] 533
_, and bounds. Thus, the situation became tense and the acrimony reached its A
zenith.

The murder took place, according to the prosecution, at about 12.30
noon on 8th August, 1987. Prosecution version is thus:

Deceased Subhram set out to his sister's house. He proceeded to the B
bus stop but he missed the bus as the stage carriage had already moved off
by the time he reached the bus stop. He was told that the next bus would
be at 2.30 pm. So he went to a nearby house for whiling away the time in
between. The lady of the house (Harbai-PW4) was an old woman. She and
Subhram had a chat together for some time and then she withdrew to the C
kitchen and thereafter Subhram slumped on a cot on the verandah of that
house. He might or might not have gone to siesta.

At about 12.30 noon his father Bhagirath along with Hanuman and
Kheta reached there. Bhagirath held a grip on the legs of his son while
Hanuman and Kheta whacked on his neck with Kulhari (heavy sharp weapon D
for cutting purposes). Hearing the sounds of death pangs of the victim, the
two lady inmates of the house (PW4 Harbai and her daughter-in-law Hirli)
rushed out of the culinary section. They were shellshocked by the sight of

- the blind young man being slaughtered by the three assailants who took to
their heels after accomplishing the object. The hue and cry made by the ladies
brought attention of the men and women of the entire neighbour-hood, and E
all rushed to the scene. Deceased's mother Jamna on hearing the saddest
news in her life dashed to the scene, but the sight of her blind son's head
remaining practica.lly severed from the trunk had affected her mental equilibrium
and she suddenly swooned.

Sessions Court placed complete reliance on the evidence of PW4 Harbai
F
and her daughter-in-law Hirli and held the three accused guilty under Section
302 read with Section 34 of the IPC and convicted them and sentenced them
as aforesaid.

A Division Bench of the High Court of Punjab and Haryana concurred G
with the sessions court regarding the reliability of evidence of the two eye
witnesses and confirmed the conviction and sentence passed on Hanuman
and Kheta. But regarding Bhagirath the Division Bench said like this:

"Although we find the testimony of Harbai and Hirli reliable and
trustworthy but as Bhagirath has not caused any injury we, as a H
534 SUPREME COURT REPORTS [1999] 3 S.C.R.

A matter of abundant caution, give him benefit of doubt and acquit him
of the charge. The conviction and sentence of other two are
maintained."

The High Court has failed to consider the implication of the evidence
of the two eye witnesses on the complicity of Bhagirath particularly when the
B High Court found their evidence reliable. Benefit of doubt was given to
Bhagirath "as a matter of abundant caution." Unfortunately, the High Court
did not point out the area where there is such a doubt. Any restraint by way
of abundant caution need not be entangled with the concept of benefit of
doubt. Abundant caution is always desirable in all spheres of human activities.
C But the principle of benefit of doubt belongs exclusively to criminal
jurisprudence. The pristine doctrine of benefit of doubt can be invoked when
there is reasonable doubt regarding the guilt of the accused. It is the reasonable
doubt which a conscientious judicial mind entertains on a conspectus of the
entire evidence that the accused might not have committed the offence, which
affords benefit to the accused at the end of the criminal trial. Benefit of doubt
D is not a legal dosage to be administered at every segment of the evidence,
but an advantage to be afforded to the accused at the final end after
consideration of the entire evidence, if the judge conscientiously and reasonably
entertains doubt regarding the guilt of the accused.

It is nearly impossible in any criminal trial to prove all elements with
E scientific precision. A criminal court could be convinced of the guilt only
beyond the range of a reasonable doubt. Of course, the expression "reasonable
doubt" is incapable of definition. Modem thinking is in favour of the view
that proof beyond a reasonable doubt is the same as proof which affords
moral certainty to the judge.
F Francis Wharton, a celebrated writer on Criminal Law in United States
has quoted from judicial pronouncements in his book on "Wharton's Criminal
Evidence" as follows (at page 31, volume l of the 12th Edition):

"It is difficult to define the phrase "reasonable doubt." However, in
all criminal cases a careful explanation of the term ought to be given.
G
A definition often quoted or followed is that given by Chief Justice
Shaw in the Webster Case. He says: "It is no~ tnere possible doubt,
because everything relating to human affairs and depending upon
moral evidence is open to some possible or imaginary doubt. It is that
state of the case which, after the entire comparison and consideration
H of all the evidence, leaves the minds of the jurors in that consideration
STATE OF HARYANA v. BHAGIRATH [THOMAS, J.] 535
that they cannot say they feel an abiding conviction to a moral A
certainty of the truth of the charge."

In the treatise on "The Law of Criminal Evidence" authored by HC
- Underhill it is stated ( at page 34, Volume 1 of the Fifth Edition) thus:

"The doubt to be reasonable must be such a one as an honest, B
sensible and fair-minded man might, with reason, entertain consistent
with a conscientious desire to ascertain the truth. An honestly
entertained doubt of guilt is a reasonable doubt. A vague conjecture
or an inference of the possibility of the innosence of the accused is
not a reasonable doubt. A reasonable doubt is one which arises from
a consideration of all the evidence in a fair and reasonable way. There C
must be a candid consideration of all the evidence and if, after this
candid consideration is had by the jurors, there remains in the minds
a conviction of the guilt of the accused, then there is no room for a
reasonable doubt."

In Shivaji Saheb Rao Bobade v. State of Maharashtra, [1974] 1 SCR D
489, this Court adopted the same approach to the principle of benefit of doubt
and struck a note of caution that the dangers of exaggerated devotion to rule
of benefit of doubt at the expense of social defence demand special emphasis
in the contemporary context of escalating crime and escape. This Court
further said: E
"The judicial instrument has a public accountability. The cherished
principles or golden thread of proof beyond reasonable doubt which
runs through the web of our law should not be stretched morbidly to
embrace every hunch, hesitancy and degree of doubt."
F
These are reiterated by this Court in Municipal Corporation of Delhi
v. Ram Kishan Rohtagi, AIR (1983) SC 67.

Learned counsel for the respondent Bhagirath argued that the injuries
found in the post-mortem examination are not consistent with the testimony
of the eye-witnesses and, therefore, a reasonable doubt would arise· in that G
region. The anti-mortem injuries found on the neck of the dead body of the
..... deceased, as described by Dr. Vijay Singh Yadav (PW7) is this:

"One incised wound on the right side of neck 4 ems from the manubrium
sterni. The wound started from the left side of the neck, one cm from
the mid line and it was 14 ems Jong and 41/2 ems wide. There was H
.,
536 SUPREME COURT REPORTS (1999] 3 S.C.R.

A transaction of all the viscera and bone at the level of cervical vertebrae
No.5. Only the skin left downwards."

PW7 said in cross-examination that the said injury "is possibly by a
single blow by one weapon with some backward support and it is not the
result of two blows with two weapons." In re-examination the doctor did not
B agree to the suggestion of the Public Prosecutor that after one blow was
inflicted with a kulhari it is possible to cause the said injury if a second blow
is also inflicted by kulhari.

The opinion given by a medical witness need not be the last word on
C the subject. Such opinion shall be tested by the court. If the opinion is bereft
of logic or objectivity, court is not obliged to go by that opinion. After all
opinion is what is formed in the mind of a person regarding a fact situation.
If one doctor forms one opinion and another doctor forms a different opinion
on the same facts it is open to the judge to adopt the view which is more
objective or probable. Similarly if the opinion given by one doctor is not
D consistent with probability the court has no liability to go by that opinion
merely because it is said by the doctor. Of course, due weight must be given •
to opinions given by persons who are experts in the particular subject.

Looking at the width of the wound on the neck (4.5 cm) and its length
E (14 ems) a doctor should not have ruled out the possibility of two successive
strikes with a sharp weapon falling at the same situs resulting in such a wide
incised wound. If the doctor does not agree to the possibility of causing such
a wound the doctor should have put-forth cogent reasons in support of such
opinion. But PW7 did not give any such reason for the curt answer given by
him that such an injury could not have been caused by two strikes with the
F same weapon or with different weapons of the same type. We are, therefore,
not persuaded to entertain any doubt regarding prosecution version on that
score.

We have absolutely no doubt that prosecution has proved with
reasonable certainty that Bhagirath was holding the legs of the deceased
G when· his neph~ws cut his throat and after finishing their work all the three
ran away together. In the broad spectrum of the occurrence there is no scope
to entertain even a semblance of doubt that Bhagir~th w.ould have shared the
common intention with the other two assailants. The Division Bench of the
High Court has grossly erred in absolving Bhagirath from the crime on a
H misplaced doubt which, in fact, did not arise at all.
STATE OF HARYANA v. BHAGIRATH [THOMAS, J.) 537
In the result, we allow this appeal and set aside the acquittal of A
respondent Bhagirath and restore the conviction and sentence passed on him
by the trial court. We direct the Sessions Judge, Narnaul(Haryana) to take

- prompt steps to put respondent Bhagirath back in jail to undergo the remaining
portion of the sentence.

R.A. Appeal allowed. B