Sanjeev Sirohi
Published on: 12 February 2023 at 22:57 IST
While not lagging behind in according prime weightage to the evidentiary value of the credible eyewitness, the Punjab and Haryana High Court has in a most learned, laudable, landmark and latest judgment titled Subhash @ Makkar and Ors v State of Haryana in 1. CRA-D-474-DB-2013 which was reserved on December 2, 2022 and then finally pronounced on January 18, 2022 held in no uncertain terms that the credible eye witness account “is to be assigned preponderance and precedence” over the medical account in case of contradiction between the two.
It must be mentioned that the court also said that the effect of minimal digressions or contradictions between the previously made statements in writing by the eyewitness and “his echoing in his testification before the Court, are insignificant, especially when the echoing made by the ocular witness about the presence of all the accused, at the crime sites, remains unrebutted and uncontroverted through adduction of cogent evidence.
It must be apprised here that the Division Bench of Hon’ble Mr Justice Sureshwar Thakur and Hon’ble Mr Justice Kuldeep Tiwari made these observations while dismissing the appeals that were filed by the appellants who were convicted by the Trial Court in March 2013 in a murder case and sentenced to imprisonment for life.
It may be recalled that the convicts Subhash @ Makkar, Ram Kumar, Baru Kumar and Santro had killed Satyawan in Hisar in 2009 in connection with a land dispute.
At the very outset, this brief, brilliant and balanced judgment authored by Hon’ble Mr Justice Sureshwar Thakur for a Division Bench of the Punjab and Haryana High Court comprising of himself and Hon’ble Mr Justice Kuldeep Tiwari sets the ball in motion by first and foremost putting forth in para 1 that, “Since both the criminal appeals arise from a common judgment, therefore, both are amenable for a common verdict becoming recorded thereons.”
Simply put, the Division Bench states in para 2 that, “CRA-D-474-DB-2013 is directed by the convicts-appellants, against the verdict of conviction, as made on 26.03.2013, by the learned Additional Sessions Judge, Hisar, upon, Sessions Case No.65 of 2010, wherethrough, in respect of charges drawn for offences punishable under Section 120-B IPC and under Section 302 of the IPC read with Section 149 IPC, he made a finding of conviction against the accused.”
Further, the Division Bench mentions in para 3 that, “Moreover, through a separate sentencing order drawn on 01.04.2013, the learned trial Judge proceeded to impose upon the convict (supra) both sentence(s) of imprisonment as well as of fine, but in the hereinafter extracted manner :-
Convicts Subhash @ Makkar, Ram Kumar, Baru Ram and Santro.
u/s 302 read with Section 149 IPC All the convicts/accused are sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs. 2,000/- each. In default of payment of fine, the convicts/accused shall further undergo rigorous imprisonment for a period of 15 days.
u/s 120-B IPC All the convicts/accused are sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs. 500/- each. In default of payment of fine, the convicts/accused shall further undergo imprisonment for a period of 2 days.”
As we see, the Division Bench lays bare in para 4 that, “All the sentence(s) were ordered to run concurrently. The convicts become aggrieved from the verdict of conviction (supra), besides become aggrieved from the above imposed sentence(s), thus, they led to cast thereagainst the instant appeal CRA-D-474-DB-2013 before this Court.”
Furthermore, it is then also laid bare in para 5 that, “CRA-D-1529-DB-2013 is directed by the complainant Dharampal, against the verdict of acquittal made on 26.03.2013, upon the accused-respondent No. 6-Vikas @ Vicky, by the learned Additional Sessions Judge, Hisar, upon Sessions Case No. 65 of 2010.”
Factual background
To put things in perspective, the Division Bench envisages in para 6 that, “The genesis of the prosecution case becomes encapsulated in the appeal FIR to which Exhibit PH/1 is assigned. The present FIR is lodged at the instance of father of the deceased Satyawan,”.
“The informant-complainant Dharampal, has made narrations thereins that that he is resident of village Pabra. In the year 1999 he had purchased 6 acre of land from Subhash son of Datu Ram, resident of village Pabra and sale deed and mutation are in his name,”.
“After about three years. Santro wife of Subhash and his sons filed a civil case in civil Courts against him regarding this land on the ground that he had purchased the said land after administering liquor to Subhash and the said case has been decided in his favour,”.
“During the pendency of trial of that case, Subhash and his family members convened a panchayat, so that the said land be returned back to them by him. Upon this, he agreed that he would return back the said land on payment of sale amount of the land, but Subhash and his family members did not pay the said amount,”.
“It was further alleged that Subhash and his brother Ram Kumar, his wife Santro, his brother in law Baru and Rakesh used to threaten him and his family to return their land otherwise he and his family would be finished. About 8-10 days prior to the occurrence, Vicky @ Vikas came on leave from Jail and threatened him with dire consequences if the land is not returned,”.
“On 25.10.2009 at about 7 AM, he alongwith his nephew Ram Phal were going towards their fields situated towards Kinala. His son Satyawan was going at a distance of about half killa from them for answering the call of nature and when he reached near Dasuwala Johar, a Tata Sumo crossed them in a very fast speed and hit Satyawan with force on his back in their presence,”.
“His son Satyawan then tried to save himself, the Tata Sumo again tried to hit his son and his son again tried to save himself. In the meantime, Ram Kumar, Baru, Rakesh and Santro alighted from the Tata Sumo and fell him on the ground and Subhash ran over Tata Sumo upon Satyawan and thereafter the said vehicle hit the stack of bricks,”.
“It was also alleged that the complainant and his companion raised alarm and upon hearing the alarm, accused ran away from the spot after leaving there the vehicle and while fleeing they also declared that they have taught them a lesson for not handing over the land and the complainant party will be finished one by one in the same manner,”.
“The complainant further stated in his statement that he and Ramphal arranged a vehicle and took his son to Hisar and upon reaching to the hospital, the doctor declared him dead,”.
“The complainant also stated that Satyawan has died due to the impact of the vehicle as well as the run over of vehicle and that accused Subhash and his family members have caused the injuries in a criminal conspiracy. Request for initiating action against the accused was made.”
Most significantly, the Division Bench then minces just no words to hold in para 26 that, “Accused Vikas alias Vicky further in his signatured disclosure statement, to which Exhibit PY is assigned, had demarcated the place of occurrence and in pursuance to the said disclosure Exhibit PZ i.e. memo of demarcation of place of occurrence became drawn. Since the above apposite exhibits have been pronounced by this Court to be holding no evidentiary vigor. Therefore, in view of the above, the verdict of acquittal, as made upon, accused Vikas @ Vicky, by the learned Convicting Court, is upheld.
Principles of Law
1) In case there is any contradiction inter-se the medical account and the eye witness account, thereupon, the credible eye witness account is to be assigned preponderance and precedence over the medical account.
2) The effect of minimal digressions or contradictions inter-se the previously made statements in writing by the ocular witness to the occurrence with his echoings in his testification recorded before the Court, are insignificant, especially when the echoing made by the ocular witness about the presence of all the accused, at the crime site, remains unrebutted and uncontroverted through adduction of cogent evidence.”
As it turned out, we see that in its final order, the Bench then holds in para 27 that, “In consequence, there is no merit in both the appeals, and, they are dismissed. The impugned verdict(s), and, consequent therewith sentence(s) (supra), as imposed upon the convicts Subhash @ Makkar, Ram Kumar, Baru Ram and Santro, in the appeal CRA-D-474-DB2013, by the learned Convicting Court, are affirmed and maintained whereas, the verdict of acquittal, as made upon the accused-respondent No. 6-Vikas @ Vicky in appeal CRA-D-1529-DB-2013, is upheld.”
All told, we thus see for ourselves that the Punjab and Haryana High Court has made it indisputably clear that the credible eyewitness account should be given precedence over medical account in case of any contradiction. It thus merits no reiteration that the same must be complied to earnestly and all the courts must definitely pay heed to what the Chandigarh High Court has held in this leading case so clearly, cogently and convincingly! No denying it!
Sanjeev Sirohi, Advocate