IMPORTANT POINT
For the alleged variance between medical evidence and ocular evidence, oral evidence has to get primary and only when medical evidence specifically rules out injury as claimed to have been inflicted as per oral testimony then only Court has to draw adverse inference.

Headnote:Indian Penal Code, 1860—Section 304 Part II—Appellant with other accused were convicted u/s 302 IPC where in three other accused were acquitted—High Court in appeal acquitted other accused and convicted appellant u/s 304 Part II IPC—Wife of deceased was sole eye witness of occurrence—Appeal—On hearing cries of deceased, his wife came out of house and saw accused persons grappling with deceased—Appellant went in side his house and assaulted deceased when other two accused caught hold of deceased and third accused gave exhortation—Eye witness right from stage of FIR had given a vivid description about participation of appellant—Defence plea had no ground that deceased was druken and while grappling with accused sustained injuries—Medical evidence was not in conflict with ocular testimony—Some delay in FIR could not be a ground to discard prosecution case—Conviction could not be disturbed.(Paras 8, 9 and 12 to 14)
       (ii) Indian Penal Code, 1860—Section 302—Delay in lodging FIR—Even a long delay could be condoned if witnesses had no motive of implicating accused and gave plausible reason for delay.(Para 9)
       (iii) Indian Penal Code, 1860—Section 302—Variance between medical evidence and ocular evidence—Oral evidence has to get primacy—Only when medical evidence specifically rules out injury as claimed to have been inflicted as per oral testimony then only Court has to draw adverse inference.
       Held : So far as the alleged variance between medical evidence and ocular evidence is concerned it is trite law that oral evidence has to get primacy and medical evidence is basically opinionative. It is only when the medical evidence specifically rules out the injury as claimed to have been inflicted as per the oral testimony, then only in a given case the Court has to draw adverse inference.(Para 10)
       Over dependence on such opinion evidence, even if the witness is an expert in the field, to checkmate the direct testimony given by an eyewitness is not a safe modus adoptable in criminal cases. It has now become axiomatic that medical evidence can be used to repel the testimony of eyewitness only if it is so conclusive as to rule out even the possibility of the eyewitness’s version to be true. A doctor usually confronted with such questions regarding different possibilities or probabilities of causing those injuries or post-mortem features which he noticed in the medical report may express his views one way or the other depending upon the manner the question was asked. But the answers given by the witness to such questions need not become the last word on such possibilities. After all he gives only his opinion regarding such questions. But to discard the testimony of an eyewitness simply on the strength of such opinion expressed by the medical witness is not conducive to the administration of criminal justice. (See, State of U.P. v. Krishna Gopal and Anr. (AIR 1988 SC 2154) and Ramanand Yadav v. Prabhu Nath Jha & Ors. [2003 (12) SCC 606].(Para 12)
       (iv) Indian Penal Code, 1860—Section 302—Interested or partisan witness—Court has duty to analyse evidence with deeper scrutiny—Whenever a plea is taken that witness is partisan or hostile towards accused, foundation for same has to be laid.
       Held : If the relatives or interested witnesses are examined, the Court has a duty to analyse the evidence with deeper scrutiny and then come to a conclusion as to whether it has a ring of truth or there is reason for holding that the evidence was biased. Whenever a plea is taken that the witness is partisan or had any hostility towards the accused, foundation for the same has to be laid. If the materials show that there is partisan approach, as indicated above, the Court has to analyse the evidence with care and caution. Additionally, the accused persons always have the option of examining the left out persons as defence witnesses.(Para 11)

JUDGMENT

Dr. Arijit Pasayat, J.—Leave granted.

2. Challenge in this appeal is to the order passed by a Division Bench of the Madhya Pradesh High Court, Indore Bench. On the basis of the accusations that appellant and four others were responsible for the homicidal death of one Kailash (hereinafter referred to as the ‘deceased’) on 27.10.1995, the accused persons faced trial. The learned First Additional Sessions Judge, Shajapur, found two of the accused persons i.e. Prakash and appellant herein Shyam to be guilty of offence punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860 (in short the ‘IPC’). Each was sentenced to undergo imprisonment for life and to pay a fine of Rs.1,000/- each with default stipulation. The other three were acquitted. The appellant and co-accused Prakash preferred an appeal before the High Court which was dismissed by the impugned order, so far as appellant is concerned. Prakash was directed to be acquitted.

3. Prosecution version as unfolded during trial is as follows:

On 27.10.1995 wife of the deceased Bhagwantibai (PW-1) was in her house, when at about 11.00 o’Clock, she heard the alarm raised by her husband. When she came out, she witnessed that the accused persons and the acquitted co-accused were grappling with him. Just then, appellant Shyam went to his house and brought a knife while accused Babloo @ Prakash exhorted them to kill him. Acquitted co-accused Dhapubai and Kirshnabai then caught the deceased and Shyam and Prakash administered several blows of knife causing injuries in various part of the body of deceased Kailash. Bhagwantibai (PW-1) raised an alarm and informed Mohanlal, Babu and Ramchandra about the incident. Kailash was carried on a cot to the hospital, but he succumbed to the injuries. Report of the incident Ex.P/1 was lodged at the police station by Bhagwantibai (PW-1), which was recorded by B.L. Meena, Station House Officer (PW-8) and an offence was registered against the accused. During investigation, inquest was held and inquest report Ex.P/6 was prepared. The body was forwarded for post-mortem examination vide requisition Ex.P/3. Spot map Ex.P/10 was prepared and samples of blood stained and simple earth were obtained vide Ex.P/11. A pair of chappals from the spot was seized under memo Ex.P/12. During investigation, accused persons were arrested and the disclosures made by them were recorded and in pursuance thereof, knife, vest (baniyan) from Shyam and a knife and kurta, pyajamas from Prakash were seized. The seized articles were sent to the Forensic Science Laboratory for analysis and charge sheet was filed against the appellants and co-accused.

4. On consideration of evidence on record, appellant and Prakash were convicted and others were acquitted. The convicted accused persons preferred an appeal before the High Court.

5. The primary plank of the argument of the appellant before the High Court was that the medical evidence was at variance with the so called eye witnesses’ version. The High Court did not accept the stand. The High Court found that actually there was no variance between the medical evidence and the ocular evidence. The High Court found no substance in the said plea of the accused appellant. It, however, found that accusations were not established so far as the accused Prakash was concerned. Accordingly his conviction was set aside and he was acquitted. However, the High Court found that the conviction under Section 302 IPC was not appropriate, the proper provision applicable would be Section 304 Part II IPC so far as present appellant is concerned. Custodial sentence of 7 years was imposed. Accordingly the appeal was partially allowed.

6. Learned counsel for the appellant submitted that since on the very same evidence three persons have been acquitted, it would not be proper to convict accused appellant on the self-same evidence, that too of a relative i.e. deceased’s widow. There was also delay in lodging the FIR. Alternative

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Judicial Analysis

SupremeToday

2007 Supreme(SC) 183

IMPORTANT POINTFor the alleged variance between medical evidence and ocular evidence, oral evidence has to get primary and only when medical evidence specifically rules out injury as claimed to have been inflicted as per oral testimony then only Court has to draw adverse inference.

Cases Referred (1)

Judicial Analysis

IMPORTANT POINT
For the alleged variance between medical evidence and ocular evidence, oral evidence has to get primary and only when medical evidence specifically rules out injury as claimed to have been inflicted as per oral testimony then only Court has to draw adverse inference.