STATE OF MADHYA PRADESHversusSURBHAN

                   STATE OF MADHYA PRADESH                                      A
                              v.
                           SURBHAN

                             APRIL 15, 1996

           fK. RAMASWAMY AND G.B. PATTANAIK, JJ.]                               B

      C1i1ninal T1ial

       Murder Trial-Child witness-Evidence o~Not consistent with medi-
cal evidence -High Cowt not placed implicit reliance on it-If excluded from     C
consideration, no other evidence supporls prosecution case-Hence accused
rightly acquitted by High Cou1t.

       Evidence Act : S.118 - FIR Not to be used as a substantive or
cmroborating a statement of third pa.-ty--Can be used either to con-oborate
or for contradiction of its maker-Criminal trial..                              D
      CRIMINAL APPELLATE JURISDICTION.: Criminal Appeal No.
593 of 1996.

     From the Judgment and Order dated 28.6.90 of the Madhya Pradesh
High Court in Cr!. A. No. 53 of 1987.                                           E
      Uma Nath Singh for the Appellant.

      R.K. Maheshwari for Respondent.

     The following Order of the Court was delivered :                           F
      Delay condoned.

      Leave granted.

     We have heard learned counsel on both sides.
                                                                                G
       This appeal by special leave arises from the order of acquittal passed
by the High Court of Madhya Pradesh, Jabalpur Bench in Criminal Appeal
No. 53 of 1987 on .June 28, 1990.. The case of the prosecution is that on
July 11, 1986, at about 6.30 p.m. while the deceased was returning after
talcing water from the tank, the respondent-accused came from behind and        H
                                     333
    334                       SUPREME COURT REPORTS (1996] SUPP. 1 S.C.R.

A   gave a blow with 'falia' and went away. P.W. 2, Ratan Singh, son of the
    deceased who is an eye-witness to the occurrence raised an alarm upon
    which P.W.3, Vesta, P.W. 4, Nawal Singh, P.W. 5, Amar Singh and others
    came to the scene of occurrence whereat Ratan Singh, P.W. 2 narrated that
    the accused came from behind and attached the deceased. The deceased
    was taken to the hospital and was declared dead. The FIR was lodged at
B
    9.30 p.m. on the same day. After investigation, the accused was ap-
    prehended and after all the witnesses were examined, the trial Court
    convicted the respondent-accused for offence of murder under Section 302,
    !PC and sentenced him to undergo life imprisonment. On appeal, the High
    Court acquitted the respondent. Hence this Appeal.
c
          The question for consideration is: whether the evidence of P.W.2,
    a child eye-witness to the incident is consistent with the medical evidence?
    The medical evidence indicates as under :
          ,,.
                 "Three incised wounds were found, viz., (1) oblique incised wound
D                about 5" x 2" bone deep, bra! spine present over antero-lateral
                 aspect of left side neck upto nape of the neck, body, !amine and
                 spine of the chakeal spine were cut; (2) incised wound about 1-1/2"
                 x 1" deep upto mandible over left cheek ad [3] incised wound about
                 2-1/2" x 1/4" over posterelateral aspect of left side elbow joint, on
E                dissection, internal injury was found and spine !amine and vertebral
                 body in ahnost completely set at like level of 7th cervical vertebral
                 spine and is almost completely several at this site".

           A reading of the medical evidence clearly indicates that three incised
    wounds were inflicted upon the deceased, one on the nape of the neck,
F   another on the left side of mandible and third on the left side of the elbow
    joint. In other words, there are three separate injuries inflicted upon the
    deceased, by three separate blows but PW 2 does not speak of the accused
    having inflicted those three injuries. prosecution case is that the accused-
    respondent had inflicted the injury one once and that too from behind. The
G   single blow cannot cause three incised injuries of different dimensions at
    three different places. Under these circumstances, the High Court had not
    placed implicit reliance on the evidence of P.W. 2 If the evidence of P.W.
    2 is excluded from consideration, we do not find any other evidence to
    support the prosecution case.

H               It is contended that the FIR mentions the names of above persons
                        STATE v. O.P. SURBHAN                          335

who were specifically mentioned and it lends corroboration to the evidence A
of P.W. 2 We find no substance in this contention. The FIR cannot be used
as substantive evidence or corroborating a statement of third party, i.e.,
P.W. 2 FIR cannot be used to corroborate the evidence of P.W. 2 It can
be used either to corroborate or for contradiction of its maker.

      It is then contended that P.Ws. 3 to 5 have consistently spoken the     B
version narrated to them by P.W.2 but there is nothing to establish from
their evidence of the offence. It may be that P.W. 2 had narrated that the
accused had attacked the deceased. If the evidence of P.W.2 is excluded
from consideration, the evidence of P.Ws. 3 to 5 docs not remain to be of
much assistance to the prosecution since it is not their case that they had   C
seen the accused running away from the scene of occurrence. In these
circumstances, we do not find any compelling reason to disagree with the
finding of the High Court leading to order of acquittal.

       The appeal is accordingly dismissed.
                                                                              D
G.N.                                                    Appeal dismissed.