State of M.P. Through P.S. Bercha  Insc 148 (15 February 2007)
Dr. ARIJIT PASAYAT & S.H. KAPADIA
(Arising Out of S.L.P. (Crl.) No. 2493 of 2006) Dr. ARIJIT PASAYAT, J.
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 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
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.
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 prosecution has fully succeeded in showing that it was on
account of the injuries inflicted by accused Shyam that death of Kailash
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
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
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 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.