The primacy of oral evidence of eye-witnesses over medical evidence and the impact of gross inconsistency between the testimony of eye-witnesses and medical evidence on the prosecution case.

JUDGMENT :

Birendra Kumar, J.

1. The sole appellant Satish @ Katariya has challenged the judgment of conviction and order of sentence dated 30.4.2015 passed in Sessions Case No. 38/2013 by learned Additional Sessions Judge, Khetri whereby the appellant was found guilty for offences under Section 302 and 504 IPC. For offence under Section 302 IPC, imprisonment for life was awarded along with fine of Rs. 20,000/-. On default of payment of fine, further one years’ Simple Imprisonment was ordered. For offence under Section 504 IPC, two years Simple Imprisonment was awarded. It is worth to mention here that co-accused Ravindra @ Bindu was also convicted by the impugned judgment, however his separate appeal abated due to death of Ravindra @ Bindu.

2. The prosecution case as disclosed in the FIR of Singhana Police Station Case No.185/2013 registered on written complaint of Rakesh Kumar, PW.3, is that in the night of 9.6.2013 at 09:30 PM, nephew of the informant Sunil Kumar (victim of murder) was at his Dharmkanta (vehicle weighing Machine). One Heera Lal (not examined), Satish son of Prabhati Lal, (PW.4), Prem Prakash (PW.1) and Satya Prakash (PW.2) were also sitting at the Dharamkanta. The appellant along with Ravindra Kumar @ Bindu came on a pick up carrier and left the place after two rounds of recce. For the third time, they came to Dharmkanta and started hurling abuses on Sunil Kumar. Then Sunil Kumar came out and the appellant crushed him under the wheels of the vehicle. The appellant backed the vehicle and again crushed Sunil and fled away along with the vehicle. Sunil was taken to the hospital where the Doctor declared him dead. The appellant is co-villager of the deceased and it is alleged that on 13.5.2013, the appellant had threatened to kill Sunil and murder was committed under a pre-planned conspiracy.

3. Mr. Sudhir Jain, learned counsel for the appellant contends that three of the prosecution witnesses claim to be eye-witnesses of the incident. They are PW.1 Prem Prakash, PW.2 Satya Prakash and PW.4 Satish. Their testimony is inconsistent with the medical evidence of PW.10 Doctor Subhash and PW.13 Doctor Rajkumar Bamboria, who were members of the medical board which performed the postmortem examination. The inconsistency improbabilises the presence of these witnesses at the time of the incident. Learned counsel has placed reliance on the judgment of the Hon’ble Supreme Court in Kapildeo Mandal & Ors vs. State of Bihar reported in 2010 (4) SCC(Cri) 203. Learned counsel next contends that the so called eye-witnesses are planted witnesses and their statements under Section 161 Cr.P.C was recorded after unexplained delay though they were cited as witnesses in the FIR itself. Learned counsel has relied on Balakrushna Swain Vs. State of Orissa reported in 1971 AIR (SC) 804. Learned counsel contends that the enmity cuts both ways and the prosecution has not disclosed the nature of enmity between the parties which propelled the appellant to commit an act of such a nature. Moreover, the eye-witnesses are interested witnesses. There are other serious lapses in the prosecution evidence which have been ignored by the learned trial Judge. No blood was found by the police at the place of incident. Learned counsel further contends that the prosecution has not come up with clean hands and chances of death of Sunil in some otherwise motor vehicle accident cannot be completely ruled out nor chances of false implication due to enmity can be ignored.

4. Learned counsel for the private respondent as well as State contends that the eye-witnesses are consistent as regards the place, time and manner of incident, therefore, as per the settled proposition of law, their evidence should be given primacy over the opinion evidence of the Doctor. Moreover, the medical evidence is not totally inconsistent with the ocular evidence. Learned counsel contends that lapses on the part of the Investigation Officer, even illegality committed during investigation,