DAYAL SINGH & Ors. v. STATE OF UTTARANCHAL

intervened to protect 'P', they too were assaulted with the Jathis. It was alleged that PWS and one other person saw the occurrence and when they challenged the accused appellants, the latter ran away. 'P' died on the spot while PW2 and PW4 received injuries. B The trial court ignored the pu"rported acts of default and omission by PW3 (the government medical officer who conducted post-mortem) and PW6 (the Investigating Officer- SI) and the apparent conflict in the eye-witness C version of the evidence and the medical evidence, and convicted the appellants under Section 302 r/w Section 34 IPC as well as under Section 323 r/w Section 34 IPC by placing reliance upon the evidence of the prosecution eye-witnesses and other corroborative evidence. The conviction was confirmed by the High Court. D In the instant appeal, the following questions arose for consideration- (1) Where acts of omission and commission, deliberate or otherwise, are committed by the investigating agency or other significant witnesses E instrumental in proving the offence, what approach, in appreciation of evidence, should be adopted; (2) Depending upon the answer to the above, what directions should be issued by the courts of competent jurisdiction and (3) Whenever there is some conflict in the F eye~witness version of events and the medical evidence, what effect will it have on the case of the prosecution and what would be the manner in which the Court should appreciate such evidence. Dismissing the appeal both on merits and also on the G quantum of sentence, the Court HELD:1.

In the instant case, there were three eye witnesses to the occurrence. Out of them, two were injured witnesses, namely PW2 and PW4. PW2 is the son H A of the deceased 'P' and PW4 is the wife. Presence of these two witnesses at the place of occurrence is normal and natural. The presence of PW2, PW4 and PW5 cannot be doubted. The statement made by them in the Court is natural, reliable and does not suffer from any serious B contradictions. Once the presence of eye-witnesses cannot be doubted and it has been established that their statement is reliable, there is no reason for the Court to not rely upon the statement of such eye witnesses in accepting the case of the prosecution. The accused c persons had come with pre-meditated mind, together with common intention, to assault the deceased and all of them kept on assaulting the deceased till the time he fell on the ground and became breathless. [Para 9] [180- A-B, E-G] D E

1.

An eye-witness version cannot be discarded by the Court merely on the ground that such eye-witness happened to be a relation or friend of the deceased. The concept of interested witness essentially must carry with it the element of unfairness and undue intention to falsely implicate the accused. It is only when these elements are present, and statement of the witness is unworthy of credence that the Court would examine the possibility of discarding such statements. But Where the presence of the eye-witnesses is proved to be natural and their F statements are nothing but truthful disclosure of actual facts leading to the occurrence and the occurrence itself, it will not be permissible for the Co\lrt to discard the statements of such related or friendly witness. [Para 10] [180-H; 181-A-C] G

1.

The plea that in the face of the expert medical evidence that no external or internal injuries were found on the body of the deceased, the statement of the eye witnesses cannot be believed and tbe accused persons are entitled to acquittal, is liable to be rejected. No doubt H the post mortem report (Exhibit Ka-4) and the statement DAYAL SINGH & ORS. v. STATE OF UTIARANCHAL 163 of PW3 does show/reflect that he had not noticed any A injuries upon the person of the deceased externally or even after opening him up internally, but the fact of the matter is that the father of PW2 had died. How he suffered death is explained by three witnesses, PW2, PW4 and PW5, respectively. Besides this, the statement of the B investigating officer, PWS, also clearly shows that the body of the deceased contained three apparent injuries. He recorded in his investigative proceedings that the accused had died of these injuries and was found lying dead at the place of occurrence. It is not only the c statement of PW-6, but also the Panchas in whose presence the body was recovered, who have endorsed this fact. The course of events as recorded in the investigation points more towards the correctness of the case of the prosecution than otherwise. [Para 12] [183- B-F] 0

1.

Merely because PW3 and PW6 have failed to perform their duties in accordance with the requirements of law, and there has been some defect in the investigation, it will not be to the benefit of the accused E persons to the extent that they would be entitled to an order of acquittal on this ground. [Para 13] [183-H; 184- A-B] Dhamidhar v. State of Uttar Pradesh (2010) 7 SCC 759: F ORDER Today, by a separate judgment, we have directed that action be taken against PW 3 Dr. C.N. Tewari and PW 6 SI Kartar Singh. The Director General of Police and Director D General, Health of State of Uttar Pradesh and/or Uttarakhand whoever is the appropriate authority, to take action within three months from today and report the matter to this Court. List for limited purpose on 15th October, 2012.