Swaroop Vs. State of
 INSC 507 (25 March 2008)
Dr. ARIJIT PASAYAT & P. SATHASIVAM (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 IPC) 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 deceased) and Vijay Singh. Around 4
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 Singhs 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 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
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
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
eyewitnesss 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.
12. We record our appreciation for the able manner in which Mr. Radha Shyam
Jena, Learned Amicus Curie highlighted various points.