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2007(8) Supreme 705
Supreme Court of india
(From Patna High Court)
P.P. Naolekar & D.K. Jain, JJ.
Kapildeo Mandal & Ors. — Petitioners
versus
State of Bihar — Respondent
Appeal (crl.) 432-433 of 2005
Decided on : 29-11-2007
AIR 1965 SC 202; (2002) 7 SCC 117; (2003) 12 SCC 606; AIR 2004 SC 5056 – Relied upon.
(b)Criminal Trial – Appreciation of Evidence – Well settled that while appreciating variance between medical evidence and ocular evidence, oral evidence of eye-witness has to get primacy as medical evidence is basically opinionative – However when the medical evidence specifically rules out the injury claimed to have been inflicted as per the eye-witnesses’ version, then the court can draw adverse inference to the effect that the prosecution version as being put forth before the court, is not trustworthy – In such cases as in the present case, the accused are entitled to benefit of doubt. (Paras 11 and 12)
(1950) SCR 821; (1979) 4 SCC 349; (1988) 4 SCC 302; (2003) 12 SCC 606; 1994 Supp (2) SCC 289; AIR 2003 SC 3975 – Relied upon.
Facts of the case:
1.All the accused persons were convicted by the 3rd Additional Sessions Judge, Bhagalpur in Sessions Trial No. 34 of 1983 under Sections 302 read with Section 149, IPC and sentenced for imprisonment for life for having committed the offence of murder of deceased Sitaram Mandal. The accused were also convicted under Sections 452 and 148, IPC. A-1 and A-4 were further convicted under Section 323, IPC. Two appeals preferred by the accused against their conviction and sentence were dismissed by the High Court.
Findings of the Court:
In view of the inconsistency in evidence of witnesses and the trustworthy medical evidence, accused are entitled to benefit of doubt.
Result : Appeals allowed.
judgment
P.P. Naolekar, J. —
1.These appeals are directed against the judgment and order dated 16th April, 2004 of the High Court of Judicature at Patna passed in Criminal Appeal Nos. 646 of 1987 and 32 of 1988, whereby the appeals of the appellants were dismissed by the High Court and their conviction and sentence was maintained.
2.Criminal Appeal No. 432 of 2005 by special leave was filed by accused No. 1 Kapildeo Mandal (A-1) and accused No. 5 Milan Mandal (A-5), whereas Criminal Appeal No. 433 of 2005 by special leave was filed by accused No. 2 Dip Narain Mandal (A-2), accused No. 3 Subhit Mandal (A-3) and accused No. 4 Pratap Mandal (A-4). After the case was reserved for judgment by this Court, it was informed by the Registry of this Court that A-3 Subhit Mandal S/o Chedi Mandal, fell seriously ill and was sent for treatment to Jawaharlal Nehru Medical College and Hospital, Bhagalpur, and during the course of treatment he died on 6th February, 2007. The appeal filed by A-3 is, therefore, rendered infructuous.
3.All the accused persons were convicted by the 3rd Additional Sessions Judge, Bhagalpur in Sessions Trial No. 34 of 1983 under Sections 302 read with Section 149, IPC and sentenced for imprisonment for life for having committed the offence of murder of deceased Sitaram Mandal. The accused were also convicted under Sections 452 and 148, IPC. A-1 and A-4 were further convicted under Section 323, IPC. Two appeals preferred by the accused against their conviction and sentence were dismissed by the High Court and thus they are before us by special leave.
4.The incident took place in the night between 14th & 15th July, 1979. As per the prosecution case as reported in the FIR by PW-9 Ramanand Mandal, at about 11.00 p.m. he woke up after hearing the sound of barking dogs. A lantern was burning in the verandah of his house. He saw persons, namely, A-1 and his younger brother A-5 entering from the inner courtyard from the roof of his house. One of them went to the southern side and opened the window from that side. A-2 and A-4 entered the house along with some other persons. One person opened the main door on the eastern side. A-3 and 5-6 other persons entered from that door. A-3 was carrying gun, whereas A-1, A-2 and A-5 were carrying country-made pistols. Other persons were carrying swords and lathis. They assaulted the inmate of the house. A-2 fired at Sitaram Mandal as a result of which he was badly injured. A-3 Subhit Mandal ordered to kill PW-9 Ramanand Mandal, upon which A-1 fired upon PW-9. A-1 assaulted PW-9 with the butt of a country-made pistol on the head. One of the miscreants sprinkled kerosene oil of two bottles upon the body of PW-6 Brahmadeo Mandal and made search of a match-box to set fire upon his body. PW-5 Mahesh Mandal was assaulted with a lathi. While leaving, the miscreants took away some articles from the house. On hearing a hue and cry, some villagers reached the spot. The occurrence and the assault was due to a land dispute between the parties. In the incident, because of the assault made, Sitaram Mandal died.
5.The prosecution examined PW-1 Madan Mandal who is not an eye-witness. He reached the place of incident after the incident was over. He stated that when he reached the place of incident PW-9 Ramanand Mandal informed him that the accused appellants were the persons involved in the assault made on the deceased Sitaram Mandal and him. He admitted that all this happened because of a land dispute between the family of Ramanand and family of accused Dip Narain Mandal. His statement was recorded by the police after two days of the incident. PW-2 Jiten Rabidas also reached the spot after the occurrence. He stated that when he enquired from PW-9 Ramanand Mandal, his brother and female members about the incident, they told that they did not identify any person. They told him that after committing dacoity dacoits fled away. PW-3 Adhiklal Mandal also reached the spot after the incident happened. He admitted
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