Holding

When medical evidence conclusively disproves the alleged firearm injuries and no ballistic evidence is produced, the prosecution case is doubtful and the accused are entitled to the benefit of doubt, warranting reversal of the convictions.

Summary

The incident occurred on the night of 14-15 July 1979 during a land dispute when several accused entered the house of the deceased, Sitaram Manda, allegedly firing weapons and assaulting occupants. The trial court convicted the accused under IPC sections 302 read with 149, 148, 452 and 323 based largely on the testimony of relatives who claimed to have identified the accused in torch‑light. The prosecution failed to produce any firearms, cartridges, pellets or ballistic evidence, and the post‑mortem report confirmed that none of the injuries were caused by firearms. The Supreme Court held that when medical evidence conclusively rules out firearm injuries and contradicts ocular testimony, the medical evidence must be given priority and the prosecution case is riddled with doubt. Consequently, the Court allowed the appeals, set aside the convictions, and ordered the accused to be released, emphasizing the benefit of doubt principle.

Issues considered

The reliability of eyewitness testimony of interested or partisan witnesses when medical evidence contradicts it.
Whether medical (expert) evidence should prevail over ocular evidence in cases of inconsistency.
Whether the absence of forensic ballistic evidence defeats a prosecution case alleging firearm injuries.
The admissibility of identification made in torch/lantern light without seizure of the light source.
Whether the benefit of doubt applies to overturn convictions under IPC sections 302, 149, 148, 452 and 323.

Legislation cited

Indian Penal Code, 1860s. 148, s. 149, s. 302, s. 323, s. 452

Subjects

benefit of doubteyewitness testimonymedical evidenceforensic evidenceidentificationIPC 302criminal lawpartisan witnessesconviction reversalland dispute

Judgment

A KAPILDEO MANDAL AND ORS.
v.
STATE OF BIHAR

NOVEMBER 29, 2007
B
[P.P. NAOLEKAR AND D.K. JAIN, JJ.)

Penal Code, 1860:
ss.3021149, 4521148-Conviction under-Based on evidence of
c eye-witnesses that accusedpersons entered house ofdeceased andfired
at him resulting in his death, assaulted informant with pistol on head
and another with lathi-Challenge against-Held: Medical evidence
completely ruled out prosecution version that injuries were caused by
firearms-No pellet/bullet recovered from place of incident or from '(

D
body ofdeceased--Incident took place at night-Witnesses stated that
they recognised accusedpersons in torch-light/lantern-light-However,
neither torch nor lantern seized by I. 0. during investigation nor
produced before court-Also, there was previous enmity between
parties-Eye-witnesses related to deceased-Thus, prosecution case
E full of doubts-Accused persons entitled to benefit of doubt.

Evidence:
Medical evidence-Primacy of, over ocular evidence-When
given-Held: In the event ofvariance between medical evidence and
F ocular evidence, ocular evidence to get primacy but when courtfind~
ocular evidence totally inconsistent to that given by medical experts,
then medical evidence would assume importance and have priority
over ocular version and can be used to repel testimony ofeye-witnesses
as it goes to the root of matter.
G
Related witness-Testimony of-Evidentiary value of ...-'

Prosecution case was that there was animosity between the
families of PW-9 and A-2. On the fateful night, accused persons A-

H 668
KAPILDEOMANDAL v. STATE 669

1 to A-5 and 5-6 other persons entered the house of deceased. A-1, A
A-2 and A-5 were carrying pistols. A-3 was carrying gun and other
persons were carrying swords and lathis. A-2 fired at deceased which
resulted in his death. A-1 fired at PW-9 informant on exhortation of
A-3. One of miscreants sprinkled kerosene on PW-6 and searched
~ for a match box to set fire on his body. PW-5 was assaulted with a B
lathi. While leaving, the miscreants took away some articles from
the house.

The Sessions Judge convicted all the accused persons under
s.302 read with s.149 and under ss.452 and 148 IPC. A-1 and A-4
were further convicted under s.323 IPC. Appeals filed by accused
c
persons before the High Court were dismissed. Hence these
appeals.

Allowing the appeals, the Court
·.!
D
• HELD: 1.1. 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 the view that it is a case of false implication. The
credibility of a witness cannot be judged merely on the basis of his E
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. [Para 8] [677-A, BJ
F
1.2. From ~he 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 PW-5, PW-6, PW-7 (wife of the informant) and the G
informant PW-9, were closely related to the deceased. At the same
time, their presence in the house where the incident took place at
night cannot be doubted. Other witnesses who were examined by
the prosecution had reached the spot after the incident had already
H
670 SUPREME COURT REPORTS [2007] 12 S.C.R.

A taken place and they were not the eye-witnesses to the incident.
[Para 8) (676-F, G)

Masalti and Ors. v. The State ofUttar Pradesh, AIR(1965) SC
202; Nallabothu Venkaiah v. State of A.P., (2002) 7 SCC 117;
B Ramanand Yadav v. Prabhunath Iha and Ors., (2003) 12 SCC 606
and State of Himachal Pradesh v. Mast Ram, AIR (2004) SC 5056,
relied on.
1.3. The witnesses were related and their relations were strained
with the appellants on account of the litigation. The incident
c happened at 11.00 o'clockin the night. The witnesses stated thatthey
have seen the incident and recognised the appellants either in the
torch-light or in the lantern-light which was burning at their house.
Neither the torch nor the lantern was seized by the 1.0. during the
course of investigation nor was it produced before the court. In the
D 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 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 PW-9, who lodged the FIR, his
E 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, the
miscreants fled away. PW-7, wife of PW-9, has stated that the
persons who committed dacoity at their residence had covered their
F 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. 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
G the police station from the hospital. Therefore, it is clear that he has
not seized any pallets, cartridges or bullets from the place ofincident.
There is no evidence on record that either the gun or the country-
made pistols were recovered from the accused-appellants by the
1.0. The statement of CW-1, the doctor, indicates that he did not
H
,

' KAPILDEOMANDAL v. STATE 671

find any pellet or cartridge from the body of the deceased in post- A
mortem. That apart, it is the case of the prosecution that 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.
l [Para 9) (678-E, F, G; 679-A, B, C, D, E] B
2.1. While appreciating variance between medical evidence and
ocular evidence, oral evidence of eye-witness has to get primacy as
medical evidence is basically opinionative. But when the court finds
variance in the evidence given by the eye-witnesses which is totally
inconsistent to that given by the medical experts, then evidence is C
appreciated in different perspective by the courts.
[Para 11) (679-G; 680-A, BJ
Mange v. State of Haryana, [1979) 4 SCC 349; State of UP. v.
Krishna Gopal and Anr., (1988) 4 SCC 302; Ramanand Yadav v.
Prabhu Nath Jha and Ors., (2003) 12 SCC 606; Mohinder Singh v. D
• The State, [1950) SCR 821; Mani Ram and Ors. v. State ofUP., (1994)
Supp. 2 SCC 289 and Thaman Kumar v. State of Union Territory of
Chandigarh, AIR (2003) SC 3975, relied on.
2.2. The medical evidence was to the effect that there were no E
firearm injuries on the body of the deceased, whereas the eye-
witnesses' version was that the accused-appellants were carrying
firearms and the injuries were caused by the firearms. In such a
situation and circumstance, the medical evidence would assume
importance while appreciating the evidence led by the prosecution,
by the court and would have priority over the ocular version and F
could 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 G
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 H
672 SUPREME COURT REPORTS [2007] 12 S.C.R.

A 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
B 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.
[Para 12) [681-F, G, H; 682-A, B, CJ
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal Nos.
C 432-433 of 2005.
From the final Judgment and Order dated 16.4.2004 of the High
Court of Judicature at Patna in Criminal Appeal Nos. 646of1987 and
32of1988.
D S.B. Sanyal, Sunil Kumar, Ranjan Mukherjee, Anita Kanungo,
Awanish Sinha and Himanshu Shekhar for the Appellants.
Anukul Raj, Gopal Singh and Rituraj Biswas for the Respondent.
The Judgment of the Court was delivered by
E
P.P. NAOLEKAR, J. I. 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. 646of1987 and 32of1988,
whereby the appeals of the appellants were dismissed by the High Court
and their conviction and sentence was maintained.
F
2. Criminal Appeal No. 432 of2005 by special leave was filed by
accused No. I Kapildeo Manda! (A-1) and accused No. 5 Milan Manda!
(A-5), whereas Criminal Appeal No. 433 of2005 by special leave was
filed by accused No. 2 Dip Narain Manda! (A-2), accused No. 3 Subhit
G Manda! (A-3) and accused No. 4 Pratap Manda! (A-4). After the case
was reserved for judgment by this Court, it was informed by the Registry {
ofthis Court that A-3 Subhit Manda! S/o Chedi Manda!, 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
H February, 2007. The appeal filed by A-3 is, therefore, rendered
/
_\
KAPILDEOMANDAL v. STATE[NAOLEKAR,J.] 673

infiuctuous. A

3. All the accused persons were convicted by the 3rd Additional
Sessions Judge, Bhagalpur in Sessions Trial No. 34of1983 under Sections
302 read with Section 149, IPC and sentenced for imprisonment for life
for having committed the offence of murder of deceased Sitaram Manda!. B
The accused were also convicted under Sections 452 and 148, IPC. A-
l 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, C
1979. As per the prosecution case as reported in the FIR by PW-9
Ramanand Manda!, 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 D
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. E
They assaulted the inmate of the house. A-2 fired at Sitaram Manda! as
a result of which he was badly injured. A-3 Subhit Manda! ordered to
kill PW-9 Ramanand Manda!, 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 F
PW-6 Brahmadeo Manda! and made search of a match-box to set fire
upon his body. PW-5 Mahesh Manda! 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, G
because of the assault made, Sitaram Manda! died.
5. The prosecution examined PW-1 Madan Manda! 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
Manda! informed him that the accused appellants were the persons H
674 SUPREME COURT REPORTS [2007] 12 S.C.R.

A involved in the assault made on the deceased Sitaram Manda! and him.
He admitted that all this happened because of a land dispute between
the family of Ramanand and family of accused Dip Narain Manda!. His
statement was recorded by the police after two days of the incident. PW-
2 Ji ten Rabidas also reached the spot after the occurrence. He stated that
B when he enquired from PW-9 Ramanand Manda!, 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 Manda! also reached the spot after the incident happened.
He admitted that there was enmity between the two families since before
C the occurrence as they were litigating. PW-4 Tej Narayan Mandal reached
the place of incident afterwards. He stated that he was infom1ed of the
names of the accused appellants. He is a relation of the complainant party.
PW-5 Mahesh Manda! 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
D light, a lantern was also burning in the verandali. He identified the accused
appellants and stated that Subhit Mandal (A-3) was armed with a double
barrel gun and Dip Narain Manda! (A-2) with a country-made pistol. A-
3 shot with a double barrel gun at his father Sitaram Manda!. A-2 also
fired with the pistol at his father. Pratap Mandal (A-4) hit him on the head
E 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 Manda! 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
F police he took advice from the family members about the occurrence and r
then made a statement to the police. The witness stated that Subhit Mandal
(A-3) put the gun on the chest of his father and fired at him and Dip Narain
Manda! (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
G 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
Manda!, 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
H
KAPILDEOMANDAL v. STATE[NAOLEKAR,J.] 675

body and asked for a match-box. It was stated by this witness that the A
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 Manda!. The witness admitted that there was a land
dispute between the accused persons and the complainant party. PW-7 B
Bimla Devi is wife of PW-9 Ramanand Manda!. 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 Manda! identified all the accused
.•
persons and stated that A-3 was armed with a gun, and A-1, A-2 and c
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 D
before him. PW-5 Mahesh Manda!, son of the deceased, had not given
any list of articles stolen from his house: Neither PW-6 Brahmadeo Manda!
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 E
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-I Dr. Ambroj Kumar Choudhury stated that on 16th July, F
1979 he conduced post-mortem examination on the body of Sitaram
Manda! and found the following ante-mortem injuries :
(i) Abraison 2 Yi'' x 1 W' on just below the left eye.
(ii) One stitched wound on frontal bone. On cutting the stitches G
the dimension of the wound was found to be Y2" x Yz" 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 H
t
\

676 SUPREME COURT REPORTS [2007] 12 S.C.R.

A stitches the dimension of the wound was found to be I Yz'' x Yi" x
bone deep. The margins were lacerated and the laceration of
external pine of left ear.
(iv) One stitched wound on the left side chin. On cutting the stitches
the dimension of the wound was found to be I" x Yi" x deep to
B
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
c wound was found to be Yi" x 1/i'' 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
D 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
E 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.
F 8. From the evidence of the v.~tnesses 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 Manda! (PW-
5), Brahmadeo Manda! (PW-6), Bimla Devi (PW-7) (wife of the
G informant) and the informant Rarnanand 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-
H witnesses to the incident. Now it is well settled by series of decisions of
t
I

KAPILDEOMANDAL v. STATE[NAOLEKAR,J.] 677

this Court that while appreciating the evidence of the witnesses related to A
the deceased, having strained relations with the accused party, their
evidence cannot be discarded solely on that basis, but the eourt 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 B
basis of his close relation with the deceased and as such cannot be a
grounc to discard his testimony, if it otherwise inspires confidence and,
particdlarly so, when it is corroborated by the evidence ofindependent
and injured witnesses. Speaking for a 5-Judge Bench in a celebrated
judgment, viz., Mas alti and Ors. v. The State of Uttar Pradesh, AIR c
(1965) SC 202 (in para 14), P.B. Gajendragadkar, C.J. said:
" ... 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.
Whether or not there are discrepancies in the evidence; whether D
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 E
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 F
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."
G
'-,· In Nallabothu Venkaiah v. State ofA.P., [2002] 7 SCC 117 (in para
13), this Court held :
" ... 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 H
678 SUPREME COURT REPORTS [2007] 12 S.C.R. '
'

A 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. ... "
In Ramanand Yadav v. Prabhunath Jha and Ors., [2003] 12 SCC 606
(in para 15), this Court held :-
B
" ... 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
c 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 .... ".
In State of Himachal Pradesh v. Mast Ram, AIR (2004) SC 5056 (in
para 11 ), this Court said :- "
D •
" ... 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..... Their testimony was thrown out at the
E threshold on the ground of animosity and relationship. This is not
the requirement of Law.... ".
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 their relations were strained with the appellants on account ~
F 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 I.
'
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 ~,

G the 1.0. 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,
H
KAPILDEO MAND AL v. ST ATE [NAOLEKAR, J.] 679

said that when he made enquiries from Ramanand Manda! (PW-9), who A
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 ofRamanand Mandal, has stated
that the persons who had committed dacoity at their residence had tied B
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 c
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 LO. The D
statement of Dr. A.K. Choudhury (CW- I) 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
Manda! (PW-9) received injury on the head. He was examined by the
doctor but no medical evidence was produced by the prosecution to prove E
the injury on the person of PW-9.
I 0. 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 F
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." G
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 ofHaryana, [1979] 4 SCC
H
680 SUPREME COURT REPORTS [2007] 12 S.C.R.

A 349 (conviction based on sole testimony of eye-witness); State of UP.
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
B 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 :-
" ... 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
c 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
D 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 anned with a gun and, in his examination, it was definitely put
E 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
F by a firearm being used at such a close range as is suggested in
the evidence..... "
In Mani Ram and Ors. v. State of UP., [1994] Supp 2 SCC 289 (in
para 9), this Court held:
G " ... 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

H
the accused on the basis of such evidence. If the evidence of the
prosecution witnesses is totally inconsistent with the medical
-
KAPILDEO MAND AL v. STATE [NAOLEKAR, J.] 681

evidence this is a most fundamental defect in the prosecution case A
and unless this inconsistency is reasonably explained it is sufficient
not only to discredit the evidence but the entire case .... ".

In another case of Thaman Kumar v. State of Union Territory of
Chandigarh, AIR (2003) SC 3975 (in para 16), this Court held :
.\ B
"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 c
assault, but the size and dimension of the 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
J
on that portion of the body where they are deposed to have been D
}
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. E
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
' F
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 G
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 H
682 SUPREME COURT REPORTS [2007] 12-S.C.R.

A 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
B 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
C 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.
D 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.
D.G. Appeals allowed.

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