The primacy of ocular testimony over medical evidence and the reliability of prosecution witnesses.

BIRENDRA KUMAR, J.

1. Both the appellants above named faced trial and were convicted and have been directed to undergo rigorous imprisonment for life for the offence under Section 302 of the Indian Penal Code and rigorous imprisonment for two years for the offence under Section 27 of the Arms Act. The sentences have been ordered to run concurrently.

2. The appellants have questioned the correctness of the judgment on two grounds; First that the learned trial Judge did not properly considered the serious inconsistency between the medical evidence and the ocular evidence produced by the prosecution, which belies the trustworthiness of the ocular evidence. Secondly, on the ground that the prosecution has examined only interested and partisan witnesses and on careful scrutiny of their testimony, it would be evident that the prosecution has miserably failed to establish the charges against the appellants.

3. Fardbeyan (Ext. 2) of P. W. 7 Kusheshwar Yadav was recorded by P. W. 9 Mangal Pandey, the Sub-Inspector of Police on 22. 11. 1992 at about 05:45 p. m. in village Lakra Patal wherein the informant disclosed that on the same day, at about 03.30 p.m., the informant was collecting paddy in his field adjacent to the south of his village Lakra Patal. He heard sound of firing of four shots from the northern side of the village. Thereafter, the informant rushed to his village and came to know that some unidentified person has committed murder of one Umesh Bind of neighbouring village Amari when Umesh Bind was coming along with his two friends. The friends of Umesh Bind escaped unhurt and fled away towards their village Amari. It is further disclosed that soon thereafter some people were seen coming up from village Amari armed with musket and guns. The appellants were identified who were leading the mob. The appellants along with others went near the dead body of Umesh Bind and thereafter chased to the murderer of Umesh Bind up to the railway lines towards north.

Thereafter, they were returning back. On the way, Sudhir Yadav nephew of the informant who was going towards village Aura Bagicha for the purpose of treatment of some one, the three miscreants including the appellants caught him and dragged towards the road near the godown of one Saudi Chaudhary. At the same place, the appellants fired two shots causing instant death of Sudhir Yadav. According to the informant, the occurrence took place as retaliation to the murder of Umesh Bind.

4. On the basis of fardbeyan aforesaid, Dharhara P. S. Case No. 133 of 1992 was registered. It is worth to mention that for the murder of Umesh Bind Dharhara P. S. Case No. 132 of 1992 was registered which has come in the evidence of the Investigating Officer.

5. From the trend of cross-examination to the prosecution witnesses, the defence is that, in fact, during firing at Umesh Bind, Sudhir Yadav also sustained injury at the hands of the murderers of Umesh Bind and he succumbed to the injuries. However, the prosecution, just to save the skin of the murderer of Umesh Bind, has lodged the false case.

6. Thus, in the present case, there is no dispute that the murder of Sudhir Yadav was committed at the said place and on the same day and time as alleged by the prosecution which finds corroboration from the prosecution evidence and the material exhibits seized by the Investigating Officer and fully referred in the trial court judgment.

7. Thus, the point for consideration is whether P. Ws. 1 to 4 and P. W. 7 who claims to be eye-witnesses of the occurrence are reliable witnesses. All these prosecution witnesses P. W. 1 Kapildeo Yadav, P. W. 2 Lakhan Yadav, P. W. 3 Kameshwar Yadav, P. W. 4 Barun Kumar and P. W. 7 Kusheshwar Yadav have consistently deposed that first the appellants caught Sudhir Yadav and dragged him near the godown of Saudi Chaudhary and thereafter fired at him causing his death. On closure and careful scrutiny of the evidence of these eye-witnesses, it does not appear that they were car