IMPORTANT POINT
If ocular testimony is such that it is not possible to relate injuries with circumstances in which they were said to have been inflicted, Court has discretion not to accept the ocular evidence.

Headnote:Indian Penal Code, 1860—Section 302/34—Accused-appellants, son father and mother assaulted husband of PW1 while victim was asleep in field —Relation between family of deceased and accused were strained—PW1 woke up on hearing noise of accused—Accused Nos. 2 and 3 caught hold of her and gagged her mouth and A1 on exhortation of A-3 picked up a big stone and threw it on head of deceased where by deceased died on spot—Trial Court found that appellant No. 2 was 59 years old and A3 was 68 years old and A1 crippled by polio could not have been able to lift a heavy stone weighing 25 to 30 kgs. in manner suggested by prosecution and acquitted all accused—High Court reversed findings in appeal on a view that polio attack affected legs and not the hands and found that appellant No. 1 was strong enough to lift the stone and throw it—Court however convicted appellants u/s 326/34 IPC—Appeal—Injuries suffered by deceased as recorded in post-mortem did not match with ocular evidence—Injuries did not indicate any depressed injury which would have been present if a heavy object such a stone were to be dropped—Circumstances created sufficient doubt regarding prosecution case and conviction could not be sustained.
       Held : On an examination of the injuries suffered by the deceased and the evidence of PW-1, it will be seen that the injuries do not match the ocular evidence. The injuries suffered by the deceased, which are extracted hereinbefore, do not indicate any depressed injury which would have to be present if a heavy object such as a stone weighing about 25 to 30 Kgs. were to be dropped on a persons head. In his deposition, PW-3, who had conducted the post mortem examination, stated that in the instant case, there was profuse bleeding internally but that he did not find any profuse bleeding in the external injury and that in the instant case, there was possibility of blood oozing from the nose and the mouth if attacked with an object such as Material Object No.1. However, while examining the deceased, he did not observe oozing of blood either from the mouth or nose. In Cross-examination, PW-3 has also observed that in case a heavy object touches a particular part of the body, there will be depressed wound or injury. The injuries as noticed by him, however, does not disclose any injury of such nature, which is inconsistent with the theory of the offence having been committed in the manner projected by the prosecution.(Para 17)
       The present case is an example of contradiction between the ocular evidence and the medical evidence, where the medical evidence is not borne out by the ocular evidence. In such a situation it was suggested on behalf of the appellants on the authority of a decision of this Court in the case of State of M.P. vs. Dharkole alias Govind Singh and Ors., reported in (2004) 13 SCC 308, where the medical evidence was at variance with the ocular evidence, the testimony of the eye-witness should be decided independently and if found trustworthy, the same could not be discarded merely because it is at variance with medical opinion. While there can be no difference of opinion with the principle explained in the aforesaid decision, the application thereof will depend on whether the story as made out by the prosecution is trustworthy and can be related to the injuries suffered by the victim in the manner as sought to be projected. If the ocular testimony is such that it is not possible to relate the injuries with the circumstances in which they were said to have been inflicted, the court has the discretion not to accept the ocular evidence. The principle enunciated in Dharkoles case (supra) may be applied in an appropriate case, but each case has to be determined having regard to its own set of facts. (Para 19)
       In the instant case, in the absence of any depressed injury and in the absence of any bleeding from the nose and ears of the deceased, we are unable to give credence to the evidence of PW-1 as to the manner in which the incident is said to have occurred.(Para 20)

JUDGMENT

Altamas Kabir, J.—The appellants herein along with one Khambham Pai Reddy were prosecuted for causing the death of Khambam Venkatramana Reddy. While the appellant No.1 was prosecuted for the offence punishable under Section 302 IPC, the two other accused were prosecuted under Section 302 IPC read with Section 34 IPC, in the alternative under Section 302 IPC read with Section 114 IPC and under Section 342 IPC.

2. In order to prove that the death of Khambam Vankatramana Reddy was homicidal, the prosecution relied upon the evidence of PWs1, 2, 3, 8 and 11. PW-1 is the widow of the deceased. PW-2 is the father of the deceased and PW-3 is the doctor who conducted autopsy on the body of Khambam Venkatramana Reddy. PW-8 is one of the inquest witnesses and PW-11 is a Sub Inspector of police who conducted the inquest and deposed that he had found an injury near the left eye of the deceased as also on the left thumb.

3. The case of the prosecution is that the victim and the accused persons were related to each other. The 1st accused is the son of accused Nos. 2 and 3 and the 3rd accused is the husband of the second accused. The 3rd accused and PW-2, Khambam Gangi Reddy, the father of the deceased, were brothers. It was the case of the prosecution that the relations between the accused and the family of the deceased were strained and there was subsisting hostility between the two groups.

4. According to the prosecution, on 9th May, 1994, the deceased harvested his paddy crop and placed it in a heap on Thellabanda near Koraparthivaripalle bus stop and on that night the deceased and his wife, PW-1 slept near the heap of paddy to keep a watch over the same. In the early hours of 10th May, 1994, the accused were said to be proceeding towards Thellabanda and one R. Venkataramana who was watering his fields is alleged to have focused his torch light on them. PW-1 is said to have woken up on hearing the noise of the accused persons proceeding towards Thellabanda and in the beam of her torch light she claims to have seen and recognized the accused persons. According to her, the accused Nos. 2 and 3 caught hold of her hands and gagged her by stuffing a cloth in her mouth to prevent her from crying out. At the same time, the 3rd accused exhorted the 1st accused to kill the deceased who was still in a sound sleep. On such exhortation, the 1st accused is said to have picked up a big stone and had thrown the same on the head of the deceased, as a result whereof, the deceased sustained fatal injuries on his head and died instantaneously.

5. Having committed the crime, the accused Nos. 1 to 3 ran away and PW-1 raised an alarm. On hearing the alarm, one Srivargani Guravaiah, PW-7, who was also said to be watching his paddy near the scene of the offence, focused his torch light and saw the accused Nos. 1 to 3 running away. PW-7 then rushed to the spot and found the deceased with head injury. PW-1 is said to have narrated the incident to him and then she went to the village and informed her family members about the said incident.

6. On 10th May, 1994, at about 10.00 A.M., PW-1 lodged a complaint which was registered as Crime No. 9/1994 under Section 302 read with Section 34 IPC. On the same day, PW-11, a Sub Inspector of police, conducted inquest in respect of the dead body in the presence of PW-8 and thereafter the body was sent to the Government Hospital, Piler, for conducting post mortem. The doctor who examined the dead body was of the opinion that the deceased had died on account of the head injuries.

7. After completion of the investigation, the Investigating Officer filed chargesheet against the three accused persons, who denied their involvement in the incident and claimed that they had been falsely implicated on account of the subsisting rivalry between the two groups. It was also the defence of the accused that the story as narrated by PW-1 should not be accepted for the reason that the accused No.1 had suffered

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2006 Supreme(SC) 878

IMPORTANT POINTIf ocular testimony is such that it is not possible to relate injuries with circumstances in which they were said to have been inflicted, Court has discretion not to accept the ocular evidence.

Cases Referred (1)

IMPORTANT POINT
If ocular testimony is such that it is not possible to relate injuries with circumstances in which they were said to have been inflicted, Court has discretion not to accept the ocular evidence.