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CASE NO.: Appeal (crl.)  215 of 2007

PETITIONER: Shyam

RESPONDENT: State of M.P. through P.S. Bercha

DATE OF JUDGMENT: 15/02/2007

BENCH: Dr. ARIJIT PASAYAT & S.H. KAPADIA

JUDGMENT: J U D G M E N T (Arising Out of S.L.P. (Crl.) No. 2493 of 2006)

Dr. ARIJIT PASAYAT, J.

       Leave granted.

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.

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

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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.

       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.

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.  

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. Alternatively, it was  submitted that the High Court was not justified in holding that  the appellant was responsible for the death of the deceased  and/or that he had knowledge that the act committed by him  would result in death.

Learned counsel for the State on the other hand  supported the judgment of the High Court. Coming to the case of appellant Shyam, the eye witness  has right from the stage of the first information report, given a  vivid description about the participation from the beginning,  the manner in which he went to his house and brought the  knife and he assaulted and caused injuries to Kailash.  The  evidence of Dr. H.L. Arya (PW-3) and his autopsy report clearly  recorded four external injuries on the body of the deceased  Kailash.  The testimony of this witness has been subjected to  searching cross-examination, but nothing has been brought  on record to discredit the statement of Bhagwantibai (PW-1).   What has been suggested is that the deceased was drunken  and that there was grappling between the two in which the  deceased sustained injuries.  As seen from the injuries  recorded in post mortem report, first injury has been  sustained in the lumbar region, second on the shoulder, third  in the inguinal region and the fourth on the left forearm.  It  appears incredible that in grappling, a person would sustain  injuries on places where it would be difficult for his hand to  reach.  It is also beyond comprehension that in such grappling  with a knife in the hand of the deceased, the other party,  namely the accused, would escape unscathed. We have  recorded the submission only to discard it. Thus the

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prosecution has fully succeeded in showing that it was on  account of the injuries inflicted by accused Shyam that death  of Kailash occurred.   

There is no proposition in law that relatives are to be  treated as untruthful witnesses. On the contrary, reason has  to be shown when a plea of partiality is raised to show that the  witnesses had reason to shield the actual culprit and falsely  implicate the accused. No evidence has been led in this regard.  So far as the delay in lodging the FIR is concerned, the  witnesses have clearly stated that after seeing the deceased in  an injured condition immediate effort was to get him  hospitalized and get him treated. There cannot be any  generalization that whenever there is a delay in lodging the  FIR, the prosecution case becomes suspect. Whether delay is  so long as to throw a cloud of suspicion on the seeds of the  prosecution case, would depend upon the facts of each case.  Even a long delay can be condoned if the witnesses have no  motive of implicating the accused and have given a plausible  reason as to why the report was lodged belatedly. In the  instant case, this has been done. It is to be noted that though  there was cross-examination at length no infirmity was noticed  in their evidence.  Therefore, the trial Court and the High  Court were right in relying on the evidence PW-1.  

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.

In some cases persons may not like to come and depose  as witnesses and in some other cases the prosecution may  carry the impression that their evidence would not help it as  there is likelihood of partisan approach so far as one of the  parties is concerned. In such a case mere non-examination  would not affect the prosecution version. But at the same time  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.

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

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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].

In this case it has been categorically held that there is no  variance.  That being so, even the hypothetical plea is also  applicable.

In the aforesaid circumstances the judgment of the High  Court does not suffer from any infirmity.

       The appeal is dismissed.