http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 8  

CASE NO.: Appeal (crl.)  432-433 of 2005

PETITIONER: Kapildeo Mandal & Ors

RESPONDENT: State of Bihar

DATE OF JUDGMENT: 29/11/2007

BENCH: P.P. NAOLEKAR & D.K. JAIN

JUDGMENT: J U D G M E N T

CRIMINAL APPEAL NOS.432-433 OF 2005

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 8  

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 that there was enmity  between the two families since before the occurrence  as they were litigating. PW-4 Tej Narayan Mandal  reached the place of incident afterwards.  He stated  that he was informed of the names of the accused  appellants.  He is a relation of the complainant  party. PW-5 Mahesh Mandal is one of the sons of the  deceased.  He deposed that he saw the incident in the  flash of a torch-light.  Besides the torch light, a  lantern was also burning in the verandah. He  identified the accused appellants and stated that  Subhit Mandal (A-3) was armed with a double barrel gun  and Dip Narain Mandal (A-2) with a country-made  pistol.  A-3 shot with a double barrel gun at his  father Sitaram Mandal. A-2 also fired with the pistol  at his father.  Pratap Mandal (A-4) hit him on the  head with a knife.  He  saw the miscreants injuring  Ramanand Mandal (PW-9).  Thereafter, after  collecting  ornaments and clothes, they fled away.  As per this  witness, the deceased Sitaram Mandal had received  firearm injury and he received injury by a knife.  His  statement was recorded after four days of the incident  and he admitted that before giving statement to the  police he took advice from the family members about  the occurrence and then made a statement to the  police.  The witness stated that Subhit Mandal (A-3)

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 8  

put the gun on the chest of his father and fired at  him and Dip Narain Mandal (A-2) put the pistol near  the mouth of his father and fired with the pistol.   The witness admitted that there was a litigation  between the families. The witness also stated that he  did not give the torch to the S.I. of Police nor did  he produce that torch in the court. PW-6 Brahmadeo  Mandal, another son of the deceased, identified the  accused appellants to be the miscreants.  He stated  that Subhit Mandal (A-3) was armed with a double  barrel gun;  A-1, A-2 and A-5 were armed with pistols  and A-4 was armed with a knife and a lathi.  A-5  poured kerosene oil on his body and asked for a match- box. It was stated by this witness that the  properties, ornaments, clothes, etc. were looted and  taken away by the miscreants.  He saw that his uncle  Ramanand had sustained injury.  This witness admitted  in cross-examination that he did not see who assaulted  his father Sitaram Mandal.  The witness admitted that  there was a land dispute between the accused persons  and the complainant party.  PW-7 Bimla Devi is wife of  PW-9 Ramanand Mandal. She identified the accused  persons in the light of a lantern.  She admitted that  the accused persons whom she had identified had  covered their faces with gamochha but they had not  tied turbans.   PW-9 Ramanand Mandal identified all the  accused persons and stated that A-3 was armed with a  gun, and A-1, A-2 and A-5 were armed with country-made  pistols.  A-2 shot at the deceased.  A-3 ordered A-1  to assault him and A-1 shot at him which missed.  

6.              CW-2 Shreedhar Choubey is the Investigating  Officer who recorded the statements of the witnesses  examined by the prosecution.  He stated that none of  the witnesses produced any blood-stained clothes  before him.  PW-5 Mahesh Mandal, son of the deceased,  had not given any list of articles stolen from his  house:  Neither PW-6  Brahmadeo Mandal told him that  A-1 took away ornaments and clothes.  The pouring of  kerosene oil on Brahmadeo was not told to him by PW-7  Bimla Devi nor did she tell him about the assault made  on her.  PW-7 did not inform him that she identified  the accused persons in the light of a lantern.  During  the investigation, he did not find any empty  cartridges,  burnt cotton, burnt papers, wads or  pellets inside the house or in the outer verandah.

7.              CW-1 Dr. Ambroj Kumar Choudhury stated that  on 16th July, 1979 he conduced post-mortem examination  on the body of Sitaram Mandal and found the following  ante-mortem injuries : (i) Abraison 2 =" x 1 =" on just below the left  eye. (ii) One stitched wound on frontal bone.  On  cutting the stitches the dimension of the wound  was found to be =" x =" x bone deep.  The margins  were lacerated.  On dissection underlying tissues  were infiltrated with blood and blot clots.  On  further dissection fracture of frontal bone was  detected. (iii) One stitched wound just below the left ear.   On cutting the stitches the dimension of the  wound was found to be 1 =" x =" x bone deep.  The  margins were lacerated and the laceration of  external pine of left ear.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 8  

(iv) One stitched wound on the left side chin.   On cutting the stitches the dimension of the  wound was found to be 1" x =" x deep to the mouth  cavity.  On further dissection the laceration of  muscle and fracture of the left ramus of mandible  was detected. (v) One stitched wound on the right side of the  chest in between 10th and 12th ribs.  On cutting  the stitches the dimension of the wound was found  to be =" x <" x deep upto abdominal cavity.  The  wound was incised and penetrating, the weapon  after passing through the skin, intercostal  muscle adjoining nerve vessel entered into the  right lobe of the liver via right side of the  diaphyram, right side of the peritoneal cavity  was filled with blood and the blood clots.         

According to the doctor, injuries Nos. (i) and (iii)  were simple and injuries Nos. (ii), (iv) and (v) were  grievous in nature.  As per the doctor’s evidence,  injuries Nos. (i) to (iv) were caused by hard blunt  weapon and injury No. (v) was caused by sharp  penetrating weapon.  As per the doctor’s evidence, the  death occurred due to shock and haemorrage on account  of the said injuries. In the cross-examination, the  doctor admitted that he did not find any indication of  any firearm injury on the person of the deceased.

8.              From the evidence of the witnesses examined  by the prosecution, it is clear that there was  animosity between the side of the complainant and the  accused persons.  There was a litigation between the  parties and they did not have good relations.  The  witnesses  Mahesh Mandal (PW-5), Brahmadeo Mandal (PW- 6), Bimla Devi (PW-7) (wife of the informant) and the  informant Ramanand Mandal(PW-9), are closely related  to the deceased.  At the same time, their presence in  the house where the incident took place at 11.00  o’clock at night cannot be doubted.  Other witnesses  who were examined by the prosecution had reached the  spot after the incident had already taken place and  they were not the eye-witnesses to the incident.  Now  it is well settled by series of decisions of this  Court that while appreciating the evidence of the  witnesses related to the deceased, having strained  relations with  the accused party, their evidence  cannot be discarded solely on that basis, but the  court is required to carefully scrutinize it and find  out if there is scope for taking view whereby the  court can reach to the conclusion that it is a case of  false implication.  The credibility of a witness  cannot be judged merely on the basis of his close  relation with the deceased and as such cannot be a  ground to discard his testimony, if it otherwise  inspires confidence and, particularly so, when it is  corroborated by the evidence of independent and  injured witnesses.  Speaking for a 5-Judge Bench in a  celebrated judgment, viz., Masalti and Ors.  v.  The  State of Uttar Pradesh, AIR 1965 SC 202 (in para 14),  P.B. Gajendragadkar, C.J. said:

       "\005 There is no doubt that when a criminal  Court has to appreciate evidence given by  witnesses who are partisan or interested, it has  to be very careful in weighing such evidence.  

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 8  

Whether or not there are discrepancies in the  evidence; whether or not evidence strikes the  Court as genuine; whether or not the story  disclosed by the evidence is probable, are all  matters which must be taken into account.  But it  would, we think, be unreasonable to contend that  evidence given by witnesses should be discarded  only on the ground that it is evidence of  partisan or interested witnesses.  Often enough,  where factions prevail in villages and murders  are committed as a result of enmity between such  factions, criminal Courts have to deal with  evidence of a partisan type.  The mechanical  rejection of such evidence on the sole ground  that it is a partisan would invariably lead to  failure of justice.  No hard and fast rule can be  laid down as to how much evidence should be  appreciated.  Judicial approach has to be  cautious in dealing with such evidence; but the  plea that such evidence should be rejected  because it is partisan cannot be accepted as  correct."

In Nallabothu Venkaiah  v.  State of A.P., (2002) 7  SCC 117 (in para 13), this Court held :         "\005 The test, in such circumstances, as  correctly adopted by the trial court, is that if  the witnesses are interested, the same must be  scrutinized with due care and caution in the  light of the medical evidence and other  surrounding circumstances.  Animosity is double-  edged sword and it can cut both sides.  It can be  a ground for false implication.  It can also be a  ground for assault. \005"

In Ramanand Yadav   v.  Prabhunath Jha and Ors.,   (2003) 12 SCC 606 (in para 15), this Court held :-         "\005 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 is 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. \005".

In State of Himachal Pradesh  v.  Mast Ram, AIR 2004  SC 5056 (in para 11), this Court said :-         "\005 The law on the point is well settled that  the testimony of the relative witnesses cannot be  disbelieved on the ground of relationship. The  only main requirement is to examine their  testimony with caution. \005. Their testimony was  thrown out at the threshold on the ground of  animosity and relationship.  This is not the  requirement of Law. \005".

9.              In the present case, we find from the  evidence of the witnesses examined by the prosecution  as already noticed that the witnesses are related and

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 8  

their relations were strained with the appellants on  account of the litigation.  The incident happened at  11.00 o’clock in the night.  The witnesses have stated  that they have seen the incident and recognised the  appellants either in the torch-light or in the   lantern-light which was burning at their house.  It  has come in evidence of the witnesses as well as the  Investigating Officer that neither the torch or the  lantern was seized by the I.O. during the course of  investigation nor was it produced before the court.   In the circumstances, it is difficult to believe that  the appellants have been identified in the torch-light  or in the lantern-light.  One of the witnesses Jiten  Rabidas (PW-2), who is related to the deceased and  reached  the place of occurrence immediately after the  incident of dacoity, said that when he made enquiries  from Ramanand Mandal (PW-9), who lodged the FIR, his  brother, and other female members, they specifically  told him that they did not identify the persons who  had committed the dacoity in the house.  Family  members told that after committing dacoity, they fled  away.  PW-7 Bimla Devi, wife of Ramanand Mandal, has  stated that the persons who had committed dacoity at  their residence had tied gamochha on their faces.  All   the eye-witnesses have categorically stated that guns  and country-made pistols were used by the accused- appellants in commission of the crime. Shreedhar  Choubey (CW-2), who was Investigating Officer, has  deposed that he did not find any empty cartridge,  burnt cotton, burnt paper, pellets inside the house or  in the outer verandah and so long he was investigating  the case, no bullets or pallets were received at the  police station from the hospital.  Therefore, it is  clear that he has not seized any pallets, cartridges  or bullets from the place of incident.  There is no  evidence on record that either the gun or the country- made pistols were recovered from the accused- appellants by the I.O.  The statement of Dr. A.K.  Choudhury (CW-1) indicates that the doctor did not  find any pellet or cartridge from the body of the  deceased in post-mortem.  That apart, it is the case  of the prosecution that Ramanand Mandal (PW-9)  received injury on the head. He was examined by the  doctor but no medical evidence was produced by the  prosecution to prove the injury on the person of PW-9.

10.             On the face of the evidence led by the  prosecution, the medical evidence of the injuries  sustained by the deceased in this case assumes  significant importance.  All the eye-witnesses have  categorically stated that the deceased was injured by  the use of firearm, whereas the medical evidence given  by Dr. A.K. Choudhury (CW-1) specifically indicates  that no firearm injuries were found on the person of  the deceased. The doctor has stated: "I did not find  any indication of any firearm injury on the person of  the deceased.  No pellets, bullets or any cartridge  were found by me in any of the wounds found by me."

11.             It is now well settled by series of  decisions of this Court 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.  [See  Mange  v.  State of Haryana  (1979) 4 SCC 349

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 8  

(conviction based on sole testimony of eye-witness);  State of U.P.  v.  Krishna Gopal and Anr., (1988) 4  SCC 302 (in para 24); and Ramanand Yadav   v.  Prabhu  Nath Jha and Ors.,(2003) 12 SCC 606 (in para 17)]. But  when the court finds inconsistency in the evidence  given by the eye-witnesses which is totally  inconsistent to that given by the medical experts,  then evidence is appreciated in different perspective  by the courts.  In  Mohinder Singh  v.  The  State,  (1950) SCR 821 (at page 828),  this Court said :-         "\005 In a case where death is due to injuries  or wounds caused by a lethal weapon, it has  always been considered to be the duty of the  prosecution to prove by expert evidence that it  was likely or at least possible for the injuries  to have been caused with the weapon with which  and in the manner in which they are alleged to  have been caused.  It is elementary that where  the prosecution has a definite or positive case,  it must prove the whole of that case.  In the  present case, it is doubtful whether the injuries  which are attributed to the appellant were caused  by a gun or by a rifle.  Indeed, it seems more  likely that they were caused by a rifle than by a  gun, and yet the case for the prosecution is that  the appellant was armed with a gun and, in his  examination, it was definitely put to him that he  was armed with the gun P.16.  It is only by the  evidence of a duly qualified expert that it could  have been ascertained whether the injuries  attributed to the appellant were caused by a gun  or by a rifle and such evidence alone could  settle the controversy as to whether they could  possibly have been caused by a firearm being used  at such a close range as is suggested in the  evidence. \005."

In Mani Ram and Ors.  v.  State of U.P., 1994 Supp(2)  SCC 289 (in para 9), this Court held:         "\005 It is well settled by long series of  decisions of this Court that where the direct  evidence is not supported by the expert evidence  then the evidence is wanting in the most material  part of the prosecution case and, therefore, it  would be difficult to convict the accused on the  basis of such evidence.  If the evidence of the  prosecution witnesses is totally inconsistent  with the medical evidence this is a most  fundamental defect in the prosecution case and  unless this inconsistency is reasonably explained  it is sufficient not only to discredit the  evidence but the entire case. \005".

In another case of Thaman Kumar v. State of Union  Territory  of Chandigarh, AIR 2003 SC 3975 (in para  16), this Court held : "The conflict between oral testimony and medical  evidence can be of varied dimensions and shapes.  There may be a case where there is total absence  of injuries which are normally caused by a  particular weapon. There is another category  where though the injuries found on the victim are  of the type which are possible by the weapon of  assault, but the size and dimension of the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 8  

injuries do not exactly tally with the size and  dimension of the weapon. The third category can  be where the injuries found on the victim are  such which are normally caused by the weapon of  assault but they are not found on that portion of  the body where they are deposed to have been  caused by the eye-witnesses. The same kind of  inference cannot be drawn in the three categories  of apparent conflict in oral and medical evidence  enumerated above. In the first category it may  legitimately be inferred that the oral evidence  regarding assault having been made from a  particular weapon is not truthful. However, in  the second and third category no such inference  can straightaway be drawn. The manner and method  of assault, the position of the victim, the  resistance offered by him, the opportunity  available to the witnesses to see the occurrence  like their distance, presence of light and many  other similar factors will have to be taken into  consideration in judging the reliability of  ocular testimony."

12.             In the present case, the medical evidence is  to the effect that there were no firearm injuries on  the body of the deceased, whereas the eye-witnesses’  version is that the accused-appellants were carrying  firearms and the injuries were caused by the firearms.   In such a situation and circumstance, the medical  evidence will assume importance while appreciating the  evidence led by the prosecution, by the court and will  have priority over the ocular version and can be used  to repel the testimony of the eye-witnesses as it goes  to the root of the matter having an effect to repel  conclusively the eye-witnesses’ version to be true.   The medical evidence when 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 the present case, the medical  evidence completely rules out the prosecution version  of the injuries being caused by firearms, coupled with  the fact that no evidence has been produced by the  prosecution of any pellet or bullet being recovered  from the place of incident or from the body of the  deceased in post-mortem.  In the light of the fact  that there was a previous enmity between the parties  and the eye-witnesses examined are related to the  deceased and are interested witnesses; and that in   absence of the lantern or the torch, in the light of  which the incident was said to have been witnessed,  the prosecution case as placed before the court is  full of doubts, and as such the accused-appellants are  entitled for benefit of doubt.    13.             For the aforesaid reasons, the appeals are  allowed. The judgment of the High Court and that of  the trial court are set aside. The accused-appellants  are directed to be set at liberty if they are not  required in any other case.