BASTIRAMversusSTATE OF RAJASTHAN

                    [2014] 2 S.C.R. 567


                         BASTIRAM                                  A
                              V.
                  STATE OF RAJASTHAN
             (Criminal Appeal No. 758 of 2004)
                    FEBRUARY 13, 2014
                                                                   B
           [RANJANA PRAKASH DESAI AND
               MADAN B. LOKUR, JJ.]

     Penal Code, 1860: s.302 rlw s.34; s.307 rlw s.34 - Murder
- Appellants armed with pistols attacked the compla(nant party C
resulting in death of 3 persons and injury to one - Conviction
by courts below - On appeal, held: plea of appellant-BR that
he was not guilty as he was not pr.esent when the incident took
place and was in another city not acceptable as evidence
showed that he was present when the incident occurred and D
as stated by the eye witnesses participated in the crime -
Rf3garding other appellants, there was overwhelming
evidence given by the eye witnesses about the use of firearms
by all - The evidence of the eye witnesses in regard to these
appellants was consistent and there was no reason to differ E
with the concurrent findings arrived at by trial court as well as
High Court· - The appellants cannot take advantage of the
death of one member of their party or injuries caused to other
members of their group in the clash - Both the courts below
were right in holding that the appellants were armed with F
pistols and that they had fired at the victims with the intention
of killing them.

     Evidence: Medical evidence - Evidentiary value of - Held:
There is no doubt that ocular evidence should be accepted
unless it is completely negated by the medical evidence - The      G
expression "medical evidence" compendiously refers to the
facts stated by the doctor either in the injury report or in the
post mortem report or during his oral testimony and the

                             567                                   H
    568     SUPREME COURT REPORTS                 [2014] 2 S.C.R.


A opinion expressed by the doctor on the basis of the facts
  stated - Whether the injury caused the death of the person is
  the opinion of the doctor - On the same set of facts, two doctors
  may have different opinion - Therefore, the opinion of a
  particular doctor is not final or sacrosanct - An opinion given
B by a doctor, based on the facts recorded on an examination
  of a victim of a crime, could be rejected by relying on cogent
  and trustworthy eye witness testimony.

       The prosecution case was the SHO received
  information that PW-4 and his brother accused-RP were
C involved in a fight, several persons;joined in and used fire
  arms, lathis, barchis and other weapons in the fight, and
  two persons had died in the incident. At the place of
  incident, PW-4 stated to the SHO that relation between his
  brother PW-1 and accuseCf-"R.P were not cordial and on
D that day between 6.30 p.m. and, 6.45 p.m., PW-4 was
  sitting with PW-3. At that time hi$ two sons, RN and M
  went to the, house of accused-RP. On way, they were
  attacked by the four appellants. T~e four appellants were
  armed with pistols. The other accused who also
E participated in the attack were arjned with either barchi
  or jayee or sela. PW-4 stated' that his sons were
  surrounded by all the accused. Th~reafter other two sons
  of PW-4, RL and PW-10 rushed to the place of incident. ·

F      Appellant-B fired at deceased-M; appellant-BR fired
  at RL; appellant-R fired at injured PW-10 and appellant-
  ML. RL in his dying declaration stated that appellant-BR
  had fired at RN who died at the spot; appellant-BR also
  fired at M and appellant-ML fireCI at him. RL had also
G stated that appellant-B had fired at two persons.
        One of the member of the accused party also died on
    the spot. Criminal case was initiated against PW-4 and
    others, however, they were acquitted on granting benefit
    of doubt. The trial court noted that the dying declaration
H
        BASTIRAM v. STATE OF RAJASTHAN                 569


was at variance with the parcha bayan of PW-4, however,       A
it was evidence for the presence of the appellants at the
place of incident. The trial court convicted the appellants
under Section 302 r/w Section 34, IPC and also under
Section 307 r/w Section 34, IPC. On appeal, the High
Court held that appellant-BR had caused a firearm injury      B
leading to the death of RL; appellant-B had also caused
a firearm injury leading to the death of M; appellant-ML
had caused a firearm injury on the thigh of RN and
appellant-RN had caused a firearm injury on RR. The High
Court was of the view that even though the medical            c
evidence showed that RN had not received a firearm
injury, the ocular evidence to the contrary was to be
preferred since that was reliable. The High Court upheld
the conviction of the appellants.

    The appellants filed instant appeals. Appellant-BR        D
contended that he was not involved in the incident as he
was not present at the place of incident during the
relevant time and was in Bikaner; and to that effect during
the investigation, a fact finding report was tendered by
DW-12 to the Superintendent of Police that the                E
involvement of appellant BR was not established but this
was not considered either by the trial court or by the High
Court.

    Dismissing the appeals, the Court                         F
    HELD:

Presence of appellant BR:

      1.1. The Trial Judge partially rejected RL's dying      G
declaration because it was too much at variance with the
eye witness account and it was doubtful whether he was
fit to make a statement. The dying declaration was accepted
only for the purpose that it confirmed the presence of the
appellants including appellant BR at the place of             H
    570    SUPREME COURT REPORTS                [2014] 2 S.C.R.


A occurrence. There was no perversity in this conclusion of
  the lower courts. [Para 27) [580-H; 581-A-B]
         1.2. The fact finding report is only another piece of
    evidence and it has to be read along with the statement
    of the defence witnesses which clearly brought out, and
8   this was not doubted, that appellcjnt BR had in fact gone
    to Bikaner on that day for some 'official work. [Para 29)
    (581-D-E]
         1.3. On the basis of the statements made by the
c   defence witnesses it was not possible to accurately state
    when appellant BR left Bikaner, but he was certainly
    there till about 5.00 or 5.15 p.:m. if not a little later.
    Information about the incident at Nokha was received in
    Police Station Nokha at about 7.15 p.m. meaning thereby
0   that the incident had taken place a short while before that.
    As per the parcha bayan given by PW-4 the incident took
    place between 6.30 and 6.45 p.m'. There was, therefore, a .
    window of about one hour and thirty or forty-five minutes
    between the time of appellant BR's departure from
E   Bikaner and his arrival at Nokhe!. It was, therefore, quite
    possible, given the flexibility of time and a lack of
    exactitude that appellant-BR was present when the
    incident took place and as testified by the eye witnesses.
    The trial court rejected the evidence of the defence
    witnesses with regard to the absence of appellant-BR on
F   three grounds: Firstly, ther~ was no occasion for him to
    remain in Bikaner after office hoµrs, that is, after 5.00 p.m.
    Secondly, the trial court also noted some discrepancies
    in the evidence of the defence ,witnesses with regard to
    the timings given by the var\ous defence witnesses.
G   These were minor discrepancies and, as rightly noted by
    the trial court, no person keeps an eye on the clock or
    notes the time of meeting, therefore, some flexibility in
    the timings has to be given. Thirdly, since appellant-BR
    was the President of the Patwar Sangh and the defence
H   witnesses were either Patwaris or related to the Revenue
       BASTIRAM v. STATE OF RAJASTHAN                  571


Department, he could have influenced them on account          A
of being a leader. This may be a real possibility
considering the fact that though appellant-BR was
named in the parcha bayan as one of those armed with
a pistol and who caused the death of RL, he was in fact
arrested about two and a half years later. Cumulatively       B
considered, the reasons given by the trial court for
rejecting the testimony of the eye witnesses were
adequate. In any event, s the cogent and consistent eye
witness testimony relating to the presence of appellant-
BR cannot be simply discarded on the basis of possible        c
guesswork by the defence witnesses about the timings
of the meetings that appellant-BR had in Bikaner. In this
regard, the conduct of appellant-BR was also significant.
He produced a copy of his travelling allowance bill and
daily diary which showed that he left Bikaner at about        0
7.30 p.m. The trial court noted that both these documents
were prepared after the incident and in the daily diary
(Exhibit D-52) it was recorded that appellant-BR met DW-
9 in connection with a party and left Bikaner at about 7.30
p.m. and arrived at Nokha at 9.30 p.m. None of the defence    E
witnesses supported the case of appellant-BR that he left
Bikaner at 7.30 p.m. It is quite clear that appellant-BR
manufactured this evidence with a view to cover his
tracks when there was no need for him to do so,
assuming his witnesses were speaking the truth. Under
the circumstances, on a consideration of the evidence on      F
record, there is no doubt that appellant-BR was present
when the incident occurred and, as stated by the eye
witnesses, participated in it. There is no reason to upset
the concurrent finding of fact in this regard by the trial
court and the High Court. [paras 30-33] [581-F-H; 582-A-      G
H; 583-A-D]

     Suraj Pal v. State of U.P. 1994 Supp (1) SCC 528 -
referred to.
                                                              H
    572    SUPREME COURT REPORTS               [2014] 2 S.C.R.


A Other appellants:

       2. There was also overwhelming evidence given by
  the eye witnesses about the use of firearms by appellant-
  RN, appellant-ML and appellant•B. The evidence of the
  eye witnesses in regard to these appellants was
8
  consistent and there was no reason to differ with the
  concurrent findings arrived at by, the trial court as well as
  the High Court. The appellants cannot take advantage of
  the death of one member of complainant party or injuries
C caused to other members of their group in the clash.
  [paras 34, 35) [583-E-F; 584-A]

    Gunshot injury on deceased-RN:

       3.1. There is no doubt that o:cular evidence should be
0 accepted   unless it is completely negated by the medical
  evidence. The expression. "medical evidence"
  compendiously refers to the facts stated by the doctor
  either in the injury report or in the post mortem report or
  during his oral testimony plus the opinion expressed by
E the doctor on the basis of the facts stated. For example, .
  an injury on the skull or the leg: is a fact recorded by the
  doctor. Whether the injury caused the death of the person
  is the opinion of the doctor. On the same set of facts, two
  doctors may have different opinion. Therefore, the opinion
  of a particular doctor is not finalior sacrosanct. An opinion
F given by a doctor, based on the facts recorded on an
  examination of a victim of a crime, could be rejected by
  relying on cogent and trustworthy eye witness testimony.
  [Paras 37, 38, 41) [584-D-F; 585-A; 586-F]
G      Gangabhavani v. Rajapati Venkat Reddy AIR 2013 SC
  3681; State of Haryana v. Bhagirath (1999) 5 SCC 96 : 1999
  (3) SCR 529; Kapi/deo Manda/ v. State of Bihar (2008) 16
  sec 99 : 2001 (12) SCR 668:; Dayal Singh v. State of
  Uttarancha/ (2012) 8 SCC 263 : 2012 (10) SCR 157; Mange
H v. State of Haryana (1979) 4 SCC 349 - relied on.
        BASTIRAM v. STATE OF RAJASTHAN                    573


     3.2. Insofar as the injury to RN was concerned, the         A
doctor (PW-18) stated that he had conducted the post
mortem examination on the dead body. He described the
injuries on the body and in his cross-examination
categorically stated as a matter of fact that "This is correct
to suggest that there was no firearm injury on the body          B
of RN". In the face of this categorical factual assertion,
and absence of any cogent evidence to the contrary, the
conclusion arrived at by the trial court and the High Court
that deceased RN suffered a gunshot injury cannot be
accep~ed. The ocular evidence undoubtedly showed that            c
RN was fired at by appellant-ML, but in view of the
unchallenged testimony of the doctor it is quite clear that
the gunshot did not hit deceased RN and the cause of
his death was due to the cumulative effect of the various
injuries suffered by him. However, this has no impact on
                                                                 0
concurrent findings of courts below that the appellants
had the common intention of causing the death of RL,
RN, M and RR. That RR survived the injuries was
fortuitous. Both the courts were right in holding that the
appellants were armed with pistols and that they had fired
at their victims ·with the intention of killing them. [paras     E
42, 43] [587-B-G]

                     Case Law Reference:
   1994 Supp (1) sec 528        Referred to        Para 23
                                                                 F
   AIR 2013 SC 3681             Relied on          Para 37
   1999 (3) SCR 529             Relied on          Para 38
   2007 (12) SCR 668            Relied on           Para 39
                                                                 G
   2012 (10) SCR 157            Relied on          Para 40
   (1979) 4 sec 349             Relied on           Para 41
    CRIMINAL APP ELLATE JURISDICTION : Criminal Appeal
No. 758 of 2004.
                                                                 H
    574      SUPREME COURT REPORTS               [2014] 2 S.C.R.


A        From the Judgment and order dated 09.09.2003 of the
    High Court of Rajasthan at Jodhpur in Criminal Appeal No. 798
    of 2001.

                                  WITH

B Criminal Appeal No. 403 of 2014 and 759 of 2004.

       Uday U. Lalit, Ambhoj Kumar Sinha, V.J. Francis, Hari
    Kumar, Anupam Mishra for the Appellant.

c         S.S. Shamshery, MG, Milind Kumar, Sandhya Goswami
    for the Respondent.

          The Judgment of the Court was delivered by

      MADAN B. LOKUR, J. 1. Leave granted in S.L.P. (Crl.)
D No.5240 of 2004.

       2. The question for our consideration is whether there is
  any evidence that would warrant setting aside the conviction of
  the appellants by the Trial Court and affirmed by the High Court.
E In our opinion, the answer is in the n:egative and we uphold the
  conviction of the appellants for an offence punishable under
  Section 302 of the Indian Penal Code read with Section 34
  thereof.

F The facts:

        3. On 20th May, 1995 at about 7.15 p.m. Tara Chand,
  Station House Officer in Police Station Nokha, District Bikaner
  in Rajasthan received a cryptic telephonic message. The
  message was from an unknown person and was to the effect
G that in Ward No.2 in village Nokha, Ram Pratap and Sohan Lal
  (PW-4) who are real brothers were involved in a fight. Several
  others had joined in and firearms, lathis, barchis and other
  weapons were used in the fight. It was also informed that two
  persons had died in the incident.
H
 BASTIRAM v. STATE OF RAJASTHAN [MADAN B. 575
                 LOKUR, J.]
    4. Tara Chand reduced the information in writing in a           A
roznamcha and then reached the place of occurrence along with
some other police officers.

     5. At the place of occurrence, Sohan Lal gave a parcha
bayan to Tara Chand at about 8.30 p.m. Sohan Lal stated that 8
his brother Genaram (PW-1) had installed a dharam kanta or
a weighbridge on Roda Road and about five years later Ram
Pratap also installed a weighbridge on the same road. As a
result of the installation of the second weighbridge, the
relationship between Genaram and Ram Pratap was not C
cordial.

     6. Sohan Lal further stated that sometime between 6.30
p.m. and 6.45 p.m., he and Om Prakash (PW-3 - son of
Genaram) were sitting in a temple near his (Sohan Lal's) house.
At that time his two sons, namely, Ram Narain (hereafter D
referred to as deceased Ram Narain) and Mohanlal (hereafter
referred to as deceased Mohanlal) came out of his house and
went towards Ram Pratap's house. When they were near his
house, they were attacked by the four appellants, that is,
Bastiram, Mohan Lal, Ramnarayan and Banwari. These four E
appellants were armed with pistols. Also participating in the
attack were Mangilal, Ramjus, Hariram, Ram Pratap,
Bhagwanaram and Maniram who were armed with either a
barchi or a jayee or a sela.
                                                                    F
     7. Sohan Lal further stated that his two sons, deceased
Ram Narain and deceased Mohanlal, were surrounded by the
ten persons aforesaid who made a hue and cry that they should
be killed. Thereupon Om Prakash and Sohan Lal's two other
sons, namely, Rameshwarlal (hereafter referred to as deceased G
Rameshwarlal) and Rajaram (PW-10) rushed towards the site.

     8. It was further stated by Sohan Lal that appellant Banwari
fired at deceased Mohanlal; appellant Bastiram fired at
deceased Rameshwarlal; appellant Ramnarayan fired at injured        H
    576     SUPREME COURT REPORTS                  [2014) 2 S.C.R.


A Rajaram and appellant Mohan Lal fired at deceased Ram
  Narain.

       9. Schan Lal also stated that deceased Mohanlal died on
  the spot while injured Rajaram, Ram Narain and Rameshwarlal
B were taken to a hospital. Ram Narain and Rameshwarlal later
  succumbed to their injuries.

       10. Before his death on 22nd May, 1995 deceased
  Rameshwarlal gave a dying declaration on 21st May, 1995. In
C his dying declaration deceased Rameshwarlal stated that
  appellant Bastiram had fired at deceased Ram Narain who
  died on the spot. He stated that appellant Bastiram also fired
  at deceased Mohanlal and appellant Mohan Lal fired at him
  (deceased Rameshwarlal). Deceased Rameshwarlal also
  stated that appellant Banwari fired at Maniram and that his
  brother Goverdhan also arrived at the scene and Maniram
  Patwari fired at him. The dying decl~ration is clearly at variance
  with the parcha bayan of Sohan Lal.

        11. That Maniram (from Ram fl>ratap's group) died on the
E spot is not in dispute. In this regarcl, we were given a copy of
  the judgment and order dated 7th September, 2001 in Sessions
  Case No. 21 of 2001 wherein the State had accused Schan
  Lal and members of his group of ha'ifing murdered Maniram and
  causing injuries to others. In the decision, Schan Lal and all the
F members of his group were acquitted by giving them the benefit
  of doubt. That decision seems to nave attained finality.

    Decision of the Trial Court:

G      12. On these broad facts the four appellants and the other
  five persons from Ram Pratap's group were tried for various
  offences under the Indian Penal Code. The Additional Sessions
  Judge (Fast Track) Bikaner delivered his judgment in Sessions
  Case No.24/2001 on 7th September, 2001 in which he held
H the appellants guilty, inter alia, of an offence punishable under
 BASTIRAM v. STATE OF RAJASTHAN [MADAN B.                   577
                 LOKUR, J.]
Section 302 read with Section 34 of the !PC and sentenced           A
them to imprisonment for life and fine. They were also convicted
of an offence punishable under Section 307 read with Section
34 of the IPC and sentenced to rigorous imprisonment for five
years and fine. The remaining accused were acquitted.
                                                                    B
     13. The Trial Court found that there were four eye witnesses
to the occurrence, namely, Om Prakash (PW-3), Sohan Lal
(PW-4), Jagdish (PW-9) and Rajaram (PW-10). This was not
questioned before the High Court and was not disputed before
us also.
                                                                    c
      14. The Trial Judge held that appellant Banwari had
caused a firearm injury to deceased Mohanlal resulting in his
death; appellant Ramnarayan had caused a firearm injury to
Rajaram and appellant Bastiram had caused a firearm injury
to deceased Rameshwarlal resulting in his death. It was found       D
that amongst other injuries, deceased Ram Narain had
received a gun fire injury on his thigh. It was held that the gun
fire injury was inflicted by appellant Mohan Lal. The Trial Judge
noted that the post-mortem report of deceased Ram Narain
revealed that there was no firearm injury on his body, but he       E
preferred to rely on the eye witness evidence rather than on the
medical report.

      15. The Trial Judge did not place any reliance on the dying
declaration given by deceased Rameshwarlal, since it did not        F
bear a certificate of fitness given by the doctor at the time of
its recording. The Trial Judge noted that the contents of the
dying declaration were at variance with the contents of the
parcha bayan given by Sohan Lal and that there were some
discrepancies in the dying declaration which could, therefore,      G
not be depended upon for its truthfulness. However, the Trial
Judge noted that the dying declaration was evidence for the
presence of the appellants at the place of occurrence.

     16. The appellants produced their defence evidence.
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    578     SUPREME COURT REPORTS                 (20·14] 2 S.C.R.


A Appellant Bastiram produced evidence to the effect that on the
  fateful day, he had gone to Bikaner in his capacity as Patwari
  in Nokha village at about 11 a.m. He reached Bikaner at about
  1 p.m. and met several people not only in connection with his
  official work but also in connection with a State level conference
B of Patwar Sangh to be held on 8-9 June, 1995 at Alwar. He
  left Bikaner at ?.bout 7.30 p.m. and returned to Nokha at about
  9.30 p.m. As such, he was not present when the incident took
  place. Some of the persons whom appellant Bastiram met at
  Bikaner were produced as defence witnesses including
c Phoola Ram (DW-1) who stated 'that after meeting him,
  appellant Bastiram left for the house, of Gopal Krishan at about
  5.45 p.m; Mangi Lal (DW-2) statedthat appellant Bastiram was
  with him and at about 5.30 p.m. he went away with Phoola Ram.
  Gopal Krisban (DW-3) stated that appellant Bastiram had
0 come to his house at about 6 p.m. on 2oth May, 1995 and left
  at about 6.30 p.m. lnder Chand (DW-7) stated that between
  5.30 and 6 p.m. appellant Bastirami met Hanuman Singh, Sub
  Divisional Magistrate, South Bikaner. Hanuman Singh (DW-9)
  stated that appellant Bastiram had: come to his chamber with
E lnder Chand at about 5.15 or 5.30 p.m. in regard to organizing
  a farewell party on his (Hanuman Singh's) transfer. Jagdish
  (DW-10) is the son of Go pal Krishan and he stated that
  appellant Bastiram had come to his father's house at about 6
  p.m. on 20th May, 1995 and he stayed there for about half an
F hour. Jagdish also stated that he had gone to see off appellant
  Bastiram at Ambedkar Circle.

       17. Rajender Kumar Sharma appeared in the witness box
  as DW-11. He was working as Civil Judge (Junior Division)
  and Judicial Magistrate at Bikaner. He stated that he had
G recorded the dying declaration of .deceased Rameshwarlal on
  21st May, 1995. He also stated that before recording the dying
  declaration a Fitness Certificate was obtained from the doctor
  on duty which is mentioned at 'E' to 'F' in the dying declaration.
  In his cross-examination this witness stated that deceased
H
     BASTIRAM v. STATE OF RAJASTHAN [MADAN B.                            579
                     LOKUR, J.]
Rameshwarlal was fit to make a statement.                                      A

    18. Umesh Joshi (DW-12) was working as Additional
Superintendent of Police, CID (CB) in Jaipur. He had
conducted investigations in the case and had sent a Factual
Report to the Superintendent of Police of CID (CB) Rajasthan,                  B
Jaipur in which he opined that the involvement of appellant
Bastiram in the occurrence had not been established.

     19. Similarly, appellant Mohan Lal also produced defence
witnesses to prove that he was not at the place of occurrence
on the fateful day. The evidence led by both these appellants                  C
was considered by the Trial Judge but rejected.

Decision of the High Court:

     20. Feeling aggrieved by their conviction and sentence,                   D
the appellants preferred Criminal Appeal No.798 of 2001 in the
Rajasthan High Court while the State of Rajasthan preferred
Criminal Appeal No.528 of 2002 against the acquittal of the
other five accused.
                                                                               E
     21. By a judgment and order dated 9th September, 2003
the High Court upheld the conviction of the four appellants and
dismissed t~~ appeal filed by the State of Rajasthan against
the aqquittal of the remaining five accused persons. 1

     22. The High Court confirmed the conclusions of the Trial                 F
Judge. It was held that appellant Bastiram had caused a firearm
injury leading to the death of Rameshwarlal; appellant Banwari
h~d also caused a firearm injury leading to the death of
Mohanlal; appellant Mohan Lal had caused a firearm injury on
the thigh of deceased Ram Narain and appellant Ramnarayan                      G
had caused a firearm injury on Rajaram.

       23. The High Court was of the view that even though the

1.    The decision of the High Court is reported as MANU/RH/0542/2003.         H
    580     SUPREME COURT REPORTS                   (2014] 2 S.C.R.


A medical evidence showed that deceased Ram Narain had not
  received a firearm injury, the ocular evidence to the contrary was
  to be preferred since that was reliable. Reliance was placed
  on Suraj Pal v. State of U.P. 2 Alternatively, it was held that even
  if deceased Ram Narain had not received any gunshot injury,
B the fact is that appellant Mohan Lal was armed with a pistol and
  it could safely be concluded that he shared a common intention
  with the other accused persons thereby attracting Section 34
  of the IPC for the purposes of confirming his conviction for an
  offence punishable under Section 30Z of the IPC.
c       24. The four appellants filed three appeals in this Court
    being Criminal Appeal No.758 of 2004, Criminal Appeal
    No.759 of 2004 and Criminal Appeal arising out of S.L.P. (Crl.)
    No. 5240 of 2004.

D Presence of appellant Bastiram:

       25. Insofar as the appeal filed by appellant Bastiram is
  concerned, the principal submission before us was to the effect
  that there is a reasonable doubt whether he was at all involved
E in the incident. Several factors were brought to our notice in this I
  regard.                                                             ·

       26. Firstly, it was submitted that the evidence given by the ·
  four eye witnesses suggests that. appellant Bas ti ram shot
F deceased Rameshwarlal. However, in his dying declaration
  deceased Rameshwarlal does not' say that he was shot by
  appellant Bastiram. According to the dying declaration,
  deceased Ram Narain was shot by appellant Bastiram and he
  (deceased Rameshwarlal) received a gunshot injury from
G appellant Mohan Lal.

       27. The Trial Judge partially rejected deceased
    Rameshwarlal's dying declaration because it was too much at


H 2.   1994 Supp (1) SC 528.
  BASTIRAM v. STATE OF RAJASTHAN [MADAN B.                      581
                  LOKUR, J.]
variance with the eye witness account and it was doubtful               A
whether he was fit to make a statement. The dying declaration
was accepted only for the purpose that it confirmed the
presence of the appellants including appellant Bastiram at the
place of occurrence. We do not see any perversity in this
conclusion of the Trial Judge, confirmed by the High Court.             B

     28. Secondly, it was submitted that during the investigation,
a fact finding report was tendered by Umesh Joshi (DW-12) to
the Superintendent of Police of CID (CB) Rajasthan, Jaipur and
it was marked as Exhibit 'D-51'.The report concludes that the           c
involvement of appellant Bastiram in the incident was not
proved. It was submittedthat this exhibit was not considered
either by the Trial Court or by the High Court while convicting
appellant Bastiram.

    29. The fact finding report is only another piece of
                                                                        D
evidence and it has to be read along with the statement of the
defence witnesses which clearly brings out, and this has not
been doubted, that appellant Bastiram had in fact gone to
Bikaner on that day for some official work. The only question
was about the approximate time when he left Bikaner to return           E
to Nokha.

     30. On the basis of the statements made by the defence
witnesses it is not possible to accurately state when appellant
Bastiram left Bikaner, but he was certainly there till about 5.00       F
or 5.15 p.m. if not a little later. Information about the incident at
Nokha was received by Tara Chand in Police Station Nokha
at about 7.15 p.m. meaning thereby that the incident had taken
place a short while before that. As per the parcha bayan given
by Sohan Lal the incident took place between 6.30 and 6.45              G
p.m. There is therefore a window of about one hour and thirty
or forty-five minutes between the time of appellant Bastiram's
departure from Bikaner and his arrival at Nokha. It is, therefore,
quite possible, given the flexibility of time and a lack of
exactitude that appellant Bastiram was present when the                 H
    582     SUPREME COURT REPORTS                   [2014) 2 S.C.R.


A incident took place and as testified by the eye witnesses.

        31. The Trial Court rejected the evidence of the defence ,
  witnesses with regard to the absence of appellant Bastiram on
  three grounds: Firstly, there was no occasion for him to remain .
s in Bikaner after office hours, that is, after 5.00 p.m. This may,:
  not be a good enough reason per se for rejecting the testimony
  of the defence witnesses. But a reasonable conclusion can be
  drawn on the basis of the material on record that appellant
  Bastiram was in Bikaner till about 5.00 or 5.15 p.m. but this is
c of no consequence. Secondly, the Trial Court also noted some
  discrepancies in the evidence of the defence witnesses with
  regard to the timings given by the various defence witnesses.
  These are minor discrepancies and, as rightly noted by the Trial
  Court, no person keeps an eye on the clock or notes the time
0 of meeting. It is for this reason that some flexibility in the timings
  must be given. Thirdly, since appellant Bastiram was the
                                          '
   President of the Patwar Sangh a~ Nokha and the defence
  witnesses were either Patwaris or related to the Revenue
   Department, appellant Bastiram could have influenced them on
E account of being a leader. This may be a real possibilitY-
  considering the fact that though appellant Bastiram was named
   in the parcha bayan as one of thosA armed with a pistol and
   who caused the death of deceased Rameshwarlal, he was in
   fact arrested about two and a half years later on 21st January,
F 1998. Cumulatively considered, the reasons given by the Trial
   Judge for rejecting the testimony of the defence witnesses are
   adequate.

      32. In any event, what is perhaps more important is the
  cogent and consistent eye witnes:s testimony relating to the
G presence of appellant Bastirarri. This cannot be simply
  discarded on the basis of possible guesswork by the defence
  witnesses about the timings of the meetings that appellant
  Bastiram had in Bikaner. In this regard, the conduct of appellant
  Bastiram is also significant. He produced a copy of his travelling
H
  BASTIRAM v. STATE OF RAJASTHAN [MADAN B.                     583
                  LOKUR, J.]
allowance bill and daily diary which showed that he left Bikaner       A
at about 7.30 p.m. The Trial Judge noted that both these
documents were prepared after the incident and in the daily
diary (Exhibit 0-52) it is recorded that appellant Bastiram met
Hanuman Singh (DW-9) in connection with a party and left
Bikaner at about 7.30 p.m. and arrived at Nokha at9.30 p.m.            B
None of th~ defence witnesses support the case of appellant
Ba~tiram that he left Bikaner at 7.30 p.m. It is quite clear that
appellant Bastiram manufactured this evidence with a view to
cover his tracks when there was no need for him to do so,
assuming his witnesses were speaking the truth.                        c
     33. Under the circumstances, on a consideration of the
evidence on record there is no doubt that appellant Bastiram
was present when the incident occurred and, as stated by the
ey~ witnesses, participated in it. We see no reason to upset
                                                                       0
the concurrent finding of fact in this regard by the Trial Court
and the High Court.

Other appellants:

      34. There is also overwhelming evidence given by the eye         E
 witnesses about the use of firearms by appellant Ramnarayan,
 appellant Mohan Lal and appellant Banwari. The evidence of
-the eye witnesses in regard to these appellants is consistent
 and we see no reason to differ with the concurrent findings
 arrived at by the Trial Court as well as the High Court. Little was   F
 said by learned counsel disputing their involvement.

      35. It was submitted that Maniram, one of the persons
belonging to Ram Pratap's group was also killed in the incident
and there is no explanation for the cause of his death. It was         G
submitted that it is necessary for the prosecution to explain any
injuries sustained by the accused party. Nothing further need
be said on this in view of the benefit of doubt, as mentioned
above, given to Sohan Lal's group in Sessio11s Case No. 21
of 2001. Under the circumstances, we are of the opinion that
                                                                       H
    584       SUPREME COURT REPORTS                      [2014] 2 S.C.R.


A the appellants cannot take advantage of the death of Maniram
  or injuries caused to other members of their group in the clash.

    Gunshot injury on deceased Ram. Narain:

       36. Finally, it was submitted that according to the post
8
  mortem report and the evidence given by the doctor no firearm
  injury was found on the body of deceased Ram Narain.
  However, the ocular testimony is to the effect that deceased
  Ram Narain was shot at by appellant Mohan Lal injuring him
  and thereby causing his death. It wa$ submitted that the Trial
C Judge and the High Court erroneou$1y gave primacy to the
  ocular evidence disregarding the me.dical evidence.

       37. The question before us, therefore, is whether the
  "medical evidence" should be believed or whether the testimony
D of the eye witnesses should be preferred. There is no doubt
  that ocular evidence should be accepted unless it is completely
  negated by the medical evidence. 3 This principle has more
  recently been accepted in Gangabhavani v. Rajapati Venkat
  Reddy4.
E
       38. The expression "medical evidence" compendiously
  refers to the facts stated by the doctor either in the injury report
  or in the post mortem report or during his oral testimony plus
  the opinion expressed by the doctor on the basis of the facts
F stated. For example, an injury on the skull or the leg is a fact
  recorded by the doctor. Whether the injury caused the death of
  the person is the opinion of the doctor. As noted in State of
  Haryana v. Bhagirath 5 on the same set of facts, two doctors
  may have a different opinion. Therefore, the opinion of a
G
    3.   Abdul Sayeed v. State of M.P., (2010j 10 SCC 259 following State of
         Haryana v. Bhagirath, (1999) 5 SCC 96·and Solanki Chimanbhai Ukabhai
         v. State of Gujarat, (1983) 2 SCC 174.
    4.   AIR 2013 SC 3681.
H   5.    (1999) 5 sec 96.
     BASTIRAM v. STATE OF RAJASTHAN [MADAN B.                 585
                     LOKUR, J.]
particular doctor is not final or sacrosanct.                        A

     39. What about the facts recorded by a doctor - are they
sacrosanct? In Kapifdeo Manda( v. State of Bihar° the facts
found by the doctor were preferred over the eye witness
testimony. The ocular evidence was to the effect that the            B
deceased suffered firearm injuries. However, the doctor
conducting the post mortem exa.mination stated that he did not
find any indication of any firearm injury on the person of the
deceased. No pellets, bullets or any cartridge were found in any
of the wounds. Accepting the "medical evidence" on facts, it
was observed that,
                                                                     c
       "[T]he medical evidence is to the effect that there were no
       firearm injuries on the body of the deceased, whereas the
       eyewitnesses' version is that the appellant-accused were
       carrying firearms and the injuries were caused by the         D
       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 eyewitnesses as it goes to the root of   E
       the matter having an effect to repel conclusively the
       eyewitnesses' version to be true."

     40. Similarly, a fact stated by a doctor in a post mortem
report could be rejected by a Court relying on eye witness           F
testimony, though this would be quite infrequent. In Dayal Singh
v. State of Uttaranchal7 the post mortem report and the oral
testimony of the doctor who conducted that examination was
that no internal or external injuries were found on the body of
the deceased. This Court rejected the "medical evidence" and         G
upheld the view of the Trial Court (and the High Court) that the
testimony of the eye witnesses supported by other evidence
would prevail over the post mortem report and testimony of the
6.    c2ooa) 16 sec 99.
7.    (2012) a sec 263.                                              H
    586      SUPREME COURT REPOR""f':S              [2014] 2 S.C.R.


A doctor. It was held,·

          [T]he trial court has rightly ignored the deliberate lapses
          of the investigating officer as well as the post-mortem
          report prepared by Dr C.N. Tewari. The consistent
B         statement of the eyewitnesses which were fully supported
          and corroborated by other witnesses, and the investigation
          of the crime, including recovery of lathis, inquest report,
          recovery of the pagri of one of the accused from the place
          of occurrence, immediate lol:lging of FIR and the
          deceased succumbing to his injuries within a very short
c         time, establish the case of the prosecution beyond
          reasonable doubt. These lapses on the part of PW 3
          [doctor] and PW 6 [investigating officer] are a deliberate
          attempt on their part to prepare reports and documents in
          a designedly defective manner which would have
D
          prejudiced the case of the prosecution and resulted in the
          acquittal of the accused, but for the correct approach of
          the trial court to do justice and ensure that the guilty did
          not go scot-free. The evidence of:the eyewitness which was
          reliable and worthy of credence has justifiably been relied
E         upon by ttie court."

       41 . Ail opinion given by a doctor, based on the facts
  recorded on an examination of a victim of a crime, could be
  rejected by relying on cogent and trustworthy eye witness
F testimony. In Mange v. State of Haryana8 an eye wit~ess to a
  rape stated that the offence was committed on a particular day
  and at a particular time. However, the lady doctor who examined
  the victim was of the opinion that the offence was committed
  two days earlier. This Court did not accept the opinion and
G preferred to rely on the eye witness 'account holding, inter alia,
  that

          "It is difficult for any medical expert to give the exact
          duration of time when the rape was committed. More
H         particularly when we have the evidence of PW 4 [eye
  BASTIRAM v. STATE OF RAJASTHAN [MADAN B.                     587
                  LOKUR, J.]
    witness] as to the time and date of the occurrence, the            A
    medical evidence can hardly be relied upon to falsify the
    evidence of the eyewitness because the medical evidence
    is guided by various factors based on guess and certain
    calculations."
                                                                       B
     42. This being the position, insofar as the injury to deceased
Ram Narain is concerned, Dr. D.K. Purohit (PW-18) stated that
he had conducted the post mortem examination on the dead
body. He described the injuries on the body and in his cross-
examination categorically stated as a matter of fact that "This        c
is correct to suggest that there was no firearm injury on the
body of Ram Narain". In the face of this categorical factual
assertion, and absent any cogent evidence to the contrary, we
cannot accept the conclusion arrived at by the Trial Court and
the High Court that deceased Ram Narain suffered a gunshot             D
injury. The ocular evidence undoubtedly shows that deceased
Ram Narain was fired at by appellant Mohan Lal, but in view
of the unchallenged testimony of the doctor it is quite clear that
the gunshot did not hit deceased Ram Narain and the cause
of his death was due to the cumulative effect of the various
                                                                       E
injuries suffered by him.

     43. However, this has no impact on our final conclusion
since we are in the agreement with the Trial Court and the High
Court that the appellants had the common intention of causing
the death of deceased Rameshwarlal, deceased Ram Narain,               F
deceased Mohanlal and injured Rajaram. That Rajaram
survived the inj1,1ries is fortuitous. We are also in agreement with
both the Courts that the appellants were armed with pistols and
that they had fired at their victims with the intention of killing
them. We have not been shown anything that would suggest the           G
contrary.



                                                                       H
   588      SUPREME COURT REPORTS                 [2014] 2 S.C.R.
                                                                      I'
A Conclusion:

       44. We uphold the concurrent findings of the Trial.Court and
  the High Court and confirm the conV'iction and sentence on the
  appellants. There is no merit in these appeals and they are
B accordingly dismissed.

   D.G.                                      Appeals dismissed.