IMPORTANT POINT
In some cases, medical evidence may corroborate the prosecution witnesses and in some it may not, the Court however can not apply any universal rule whether ocular evidence would be relied upon or medical evidence as same will depend upon facts and circumstances of each case.

Headnote:Indian Penal Code, 1860—Section 302/34—Appellants armed with rifles came over roof of their house and abused informant as to how they burnt heap of straw belonging to accused—Deceased came on roof of the house where informant and others were present—Accused started firing and one bullet hit deceased on chest and he died on spot—PWs 4 to 8 were eye witnesses of incident and trial Court convicted all five accused of offence of murder—High Court upheld conviction—Appeal—Discrepancies between medical evidence and ocular evidence raised on two counts i.e. rigour mortis was found and in view of injury sustained by deceased, firing must have taken place from close distance whereas witnesses stated the distance to be about 45-50 feet—As regards presence of rigour mortis, age, muscular condition and activity before death, manner of death, and atmospheric conditions were relevant factors—Incident had occurred at about 7 a.m. and post mortem was conducted on same day at about 3 p.m.—When some discrepancies are found in ocular evidence vis-a-vis medical evidence, defence should seek for an explanation from doctor—Doctor in evidence stated that wounds would not come within the purview of classification of near contact—Accused could not be considered entitled to any benefit of medical discrepancy with ocular evidence—Evidence to show however that only one bullet was fired which hit deceased—Eye witnesses named only one accused whose firing of bullet hit deceased—No other member of prosecution party was injured—Common intention to cause death could not be drawn—Conviction of only appellant accused who fired shot was liable to be confirmed and of rest of accused it was liable to be set aside.
       Held : We may also notice that in the First Information Report, it was categorically stated that the appellants herein had indulged in brick batting. The statement to the said effect was proved by PW-4, PW-5, PW-6, PW-7, PW-8 and other eye-witnesses in their depositions before the court. This part of the prosecution is not under challenge before us.(Para 12)
       We may also notice the fact that there had been firing from the side of the appellants has not only been disclosed in the First Information Report but also stated by the witnesses. We would, however, examine the effect of the depositions of the said witnesses, in this behalf, a little later.(Para 13)
       We may notice that according to PW-3, the firing took place from a distance of about 50- 60 feet, whereas according to PW-4, the distance was anything between 40-45 feet. Both PW-7 and PW-8 stated that the distance from which the firing took place was about 40- 45 feet.(Para 14)
       It is also not in dispute that whereas prosecution witnesses PW-4, PW-7 and PW-8 also stated that the appellants were in the second floor of their house, whereas the deceased, informant and others were in the first floor of their house. However, the difference of height of the respective buildings is not brought on records.(Para 15)
       The discrepancies between the medical evidence and ocular evidence, however, as noticed hereinbefore, have been raised on two counts, namely, (i) rigour mortis in four limbs were found; and (ii) in view of the injury sustained by the deceased, the firing must have taken place from a close distance.(Para 16)
       The incident took place in the winter season. The deceased was aged about 50 years. Rigour mortis, thus, would be well marked. Rigour mortis, as noticed hereinbefore, appears after two to three hours. It is well developed from head to foot in about 12 hours. The age, muscular condition and activity before death, manner of death and atmospheric conditions are relevant factors. We, therefore, do not find any merit in the said contention of Mr. Rai.(Para 24)
       It is axiomatic, however, that when some discrepancies are found in the ocular evidence vis-a-vis medical evidence, the defence should seek for an explanation from the doctor. He should be confronted with the charge that he has committed a mistake. Instances are not unknown where the doctor has rectified the mistake committed by him while writing the post-mortem report.(Para 27)
       The doctor in his evidence was categorical in stating that the wounds would not come within the purview of classification of near contact; but the wounds should be classified under distant contact.(Para 32)
       We, therefore, are of the opinion that the second contention of the learned counsel also cannot be accepted. (Para 42)
       We, however, are not oblivious of one patent fact. In the First Information Report, the first informant, attributed the act of firing to Brijnandan Prasad and Sahdeo. PW-4, however, in his deposition before the court attributed the act of firing only to Brijnandan Prasad. According to him, other persons were only wielding rifles. Shivnandan Prasad fell down after receiving the gunshot and died. He in his cross-examination also attributed the act of firing only to Brijnandan Prasad. PW-5 although stated that all the accused had started firing but even according to her Brijnandan Prasad fired shot which had hit the deceased on his chest. Evidence of PW-6 is also to the same effect that the shot which had hit his father on the chest was fired by Brijnandan Prasad. PW-7 and PW-8 also named Brijnandan Prasad.(Para 43)
       Whereas Brijnandan Prasad alone fired a shot which had hit the deceased, there is no evidence brought on record to show that any other accused did so. No gun shot injury was suffered by any person. The deceased has also suffered only one gun shot injury. No sign of firing was found on the walls or any other part of the building. No cartridge was recovered. (Para 44)
       Even no other person had suffered any injury by reason of hurling of brick bats. Having regard to the materials brought on records, we are of the opinion that in this case although the prosecution has proved the charge of committing the murder of the deceased, it has failed to establish that the accused had any common intention in relation thereto. Brijnandan Prasad alone was, thus, responsible therefor. Had the other accused shared common intention with Brijnandan Prasad, they would have also fired. No such evidence having been brought on record, benefit of doubt must be extended to the other accused persons. (Para 45)
       We, therefore, while holding Brijnandan Prasad guilty, are inclined to allow the appeal of the other appellants. The judgment of conviction and sentence passed against them is set aside.(Para 46)

JUDGMENT

S.B. Sinha, J.—Appellants five in number were proceeded against and convicted for commission of an offence of murder of one Shivnandan Prasad at about 07.00 a.m. on 13.12.1999. The parties are residents of the same village.

2. On 13.12.1999 at about 06.30 a.m., the deceased was milking a buffalo. His other family members including the wife of his brother (informant Krishna Deo Prasad-PW-7), nephew Sunil Prasad and others were brushing their teeth at the roof of their house. Brijnandan Prasad and others have their joint residential house at some distance from the house of the deceased. They allegedly came over the roof of their house armed with rifles and started brick-batting and abusing the brother of the informant alleging that they had burnt a heap of straw belonging to them. When Shivnandan Prasad went to the roof of the house, allegedly the appellants started firing. One of the bullets hit Shivnandan Prasad on his chest. An alarm was raised. The first informant reached near his brother and found him dead. A First Information Report was lodged at about 10.00 a.m. on the same day before Chandi Police Station. The distance between the place of occurrence and the Chandi Police Station is said to be about 10 k.m.

3. The prosecution in support of its case examined five witnesses, amongst whom the eye-witnesses, being Satrughan Prasad (PW-4), Chandrakanti Devi (PW-5), Sunil Kumar (PW-6), Krishnadeo Prasad (PW-7) and Mahapati Devi (PW-8).

4. The learned Sessions Judge relying on or on the basis of the evidence adduced by the prosecution and in particular the deposition of the eye-witnesses found the appellants guilty of commission of an offence under Section 302/34 of the Indian Penal Code and sentenced them to undergo rigorous imprisonment for life. A fine of Rs.5,000/- was also imposed upon each of them. They were also found guilty under Section 27 of the Arms Act and were convicted to undergo rigorous imprisonment for one year. The appeals preferred by the appellants have been dismissed by a Division Bench of the High Court.

5. Mr. Nagendra Rai, the learned Senior Counsel appearing on behalf of the appellants, would raise the following contentions in support of the appeals.

1)The prosecution version on the basis whereof the judgment of conviction and sentence has been arrived, at is improbable and the same is falsified by medical evidence.

2)If the occurrence had taken place in the morning, as alleged by the prosecution, the post-mortem examination having been conducted at 03.00 p.m. on the same day, it was not possible to find presence of rigour mortis in all the four limbs and furthermore keeping in view the distance from which the firing had taken place, the doctor would not have found margin of wound having been charred.

3)The manner in which the incident took place as disclosed by the prosecution having been prevaricated from stage to stage should not be relied upon, inasmuch as in the First Information Report it was alleged that three persons fired, whereas in the statements made under Section 161 of the Code of Criminal Procedure, the witnesses attributed firing to all the accused, whereas in evidence some of the witnesses attributed the act of firing only on the Brijnandan Prasad.

4)The investigation was perfunctory, as no blood was found at the spot; no gun was recovered; no sign of firing was noticed.

5)It is improbable that although there had been indiscriminate firing, nobody else would have suffered any injury.

6)Even if the occurrence had taken place, it was only Brijnandan Prasad who had fired and, thus, participation of others having common intention to commit the said offence has not been proved.

6. Mr. Gopal Singh, the learned Standing Counsel appearing on behalf of the State of Bihar, on the other hand, would submit :

1)At the place of occurrence blood was seized, which has been proved by some of the eye-witnesses as also PW-2.

2)The witnesses examined on behalf of the prosecution has furth

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2006 Supreme(SC) 1189

IMPORTANT POINTIn some cases, medical evidence may corroborate the prosecution witnesses and in some it may not, the Court however can not apply any universal rule whether ocular evidence would be relied upon or medical evidence as same will depend upon facts and circumstances of each case.

Cases Referred (10)

IMPORTANT POINT
In some cases, medical evidence may corroborate the prosecution witnesses and in some it may not, the Court however can not apply any universal rule whether ocular evidence would be relied upon or medical evidence as same will depend upon facts and circumstances of each case.