http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 3  

CASE NO.: Appeal (crl.)  548 of 2008

PETITIONER: Ram Swaroop

RESPONDENT: State of Rajasthan

DATE OF JUDGMENT: 25/03/2008

BENCH: Dr. ARIJIT PASAYAT & P. SATHASIVAM

JUDGMENT: J U D G M E N T  (Arising out of SLP (Crl.) NO. 2469 OF 2006)

Dr. ARIJIT PASAYAT, J.

1.      Leave granted.

2.      Challenge in this appeal is to the judgment rendered by a  Division Bench of the Rajasthan High Court upholding the  conviction of the appellant for offence punishable under  Section 302 of the Indian Penal Code, 1860 (in short the \021IPC\022)  and sentence of imprisonment for life as awarded by learned  Additional Sessions Judge No.1, Jodhpur.

3.      Background facts in a nutshell are as follows:            Report was lodged by one Tulsh Singh at the Tolesar  Police station stating that on 19.11.1999 he was standing in  the road along with Swai Singh, Sumer Singh (hereinafter  referred to as \021deceased\022) and Vijay Singh.  Around 4 P.M.  Laxman Singh who was then studying in a nearby school  came and inform that while the child were talking amongst  each other, appellant Ram Swaroop slapped him.  At that time  Ram Swaroop and Shrawan were standing on the road.  When  Sumer Singh asked Ram Swaroop as to why he had beaten  Laxman, on this Shrawan started beating Sumer Singh and  the complainant tried to separate then.  In the mean time the  appellant with the intention to kill stabbed Sumer Singh with  a knife.  Sumer Singh received two stab injuries on his chest  and one stab injury from knife on his back and he started  bleeding and fell down. While the complainant and others were  attending to Sumer Singh, Shrawan and accused appellant  Ram Swaroop ran way. Sumer Singh\022s elder brother Kumbh  Singh arrived there. Sumer Singh in an injured condition was  taken to the Gandhi Hospital at Jodhpur, but he died on the  way to the hospital.  On the basis of this information, the FIR  was lodged and investigation was undertaken.  Charge sheet  was filed alleging commission of offence punishable under  Section 302 IPC by the accused appellant, while co-accused  Shrawan Ram was charged for offence punishable under  Section 302 read with Section 34 IPC. The matter was  committed to the Court of Sessions and the two accused  persons faced the trial as they pleaded innocence and denied  the allegation. In order to further its version, prosecution  examined 14 witneeses.  Tulsh Singh-PW3 and Swai Singh- PW4 were stated to be eye witnesses. The trial court on

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 3  

considering the evidence on record found the accused  appellant guilty and convicted and sentence accused appellant  for offence punishable under Section 302 IPC.        4.      The trial court found the evidence to be not sufficient to  fasten the guilt on accused Shrawan Ram.       5.      The High Court did not find any merit in the appeal of  the accused appellant and dismissed the same.       6.      In support of the appeal, learned counsel for the  appellant submitted that the trial court and the High Court  lost sight of the fact that PWs. 3 & 4 have not spoken the  truth. The scenario described by them does not fit in with the  prosecution version. It is pointed out that the manner of  attack and infliction of injuries as stated by PWs 3 & 4 do not  fit into the medical evidence.       7.      Learned counsel for the respondent-State on the other  hand supported the judgment of the trial court as affirmed by  the High Court.       8.      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.        9.      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  eyewitnesses only if it is so conclusive as to rule out even the  possibility of the eyewitness\022s 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  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.  

10.     Similar view has also been expressed in Mange v. State of  Haryana (1979(4) SCC 349), State of U.P. v. Krishna Gopal  and Anr. (AIR 1988 SC 2154) and Ram Dev and Anr. v. State  of U.P. (1995 Supp. (1) SCC 547), State of U.P. v. Harban  Sahai and Ors. (1998 (6) SCC 50)and Ramanand Yadav v.  Prabhu Nath Jha & Ors. (2003(12)SCC 606).       11.     The trial court and the High Court have analysed in great  detail the evidence of PWs. 3 & 4, which clearly bring out the  accusations against the accused appellant.  There are certain  minor variations which do not in any way corrode the  credibility of the prosecution version.  The trial court and the  High Court were, therefore, justified in placing reliance on  their evidence and holding the accused appellant guilty.  We  do not find any merit in the appeal which is accordingly  dismissed.  

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

     12.     We record our appreciation for the able manner in which  Mr. Radha Shyam Jena, Learned Amicus Curie highlighted  various points.