22 April 2019


Judgments

Supreme Court

Sanjay Khanderao Wadane Vs. State of Maharashtra

MANU/SC/0935/2017

03.08.2017

Criminal

When evidence of eye witnesses is credible and trustworthy, medical opinion pointing to alternative possibilities cannot be accepted as conclusive

Appeals have been filed against common judgment passed by the High Court, whereby order of conviction and sentence passed by trial Court, for offences punishable under Sections 143, 147, 148, 302 read with Section 149 and Section 326 read with Section 149 of Indian Penal Code, 1860 have been confirmed. In facts of case, wife of the deceased filed a complaint with regard to alleged crime, which got registered against the Accused persons. After investigation, the charges were framed and case was committed to Court of Sessions. It was case of the prosecution that, on fateful evening of 31st January, 2008, deceased was beaten to death by Appellants and others who were 12 (twelve) in numbers and armed with swords and iron pipes, owing to a long standing dispute between deceased and Accused persons.

The post mortem conducted by PW-10 made it clear that, death is caused by means of a sharp edged weapon and that too possibly by means of sword. Evidence given by PW-10 fully corroborates with the version given by PW-5 and PW-8 that, Appellants caused the death of deceased using swords and iron pipes. It has been specifically mentioned in report that, injuries could be possible by various blows of weapons. Further, death was caused due to cardio respiratory arrest due to hemorrhage as well as neurogenic shock due to very extensive lacerated wound over face including brain along with multiple bone fractures on face. The evidence of a medical person is merely an opinion which lends corroboration to the direct evidence in the case. It has been observed in various cases of this Court that, where the eye witnesses' account is found credible and trustworthy, medical opinion pointing to alternative possibilities is not accepted as conclusive.

The presence or absence of food at the time of post-mortem in relation to the time of death is based on various factors and circumstances such as type and nature of food consumed, time of taking the meal, age of the person concerned and power and capacity of the person to digest the food. In present case, though PW-8 has stated that, he had 'Bhel' with deceased just before the incident, there is no evidence about the exact time, when the meals were taken or quantity of 'Bhel' consumed by the deceased. Judging the time of death from contents of stomach, may not always be the determinative test. It will require due corroboration from other evidence. If prosecution is able to prove its case beyond reasonable doubt and cumulatively, evidence of the prosecution, including time of death, is proved beyond reasonable doubt and same points towards the guilt of the accused, then it may not be appropriate for the Court to wholly reject the case of the prosecution and to determine the time of death with reference to the stomach contents of the deceased.

This Court in a catena of cases has stated the dictum that, medical opinion is admissible in evidence like all other types of evidence and there is no hard-and-fast Rule with regard to appreciation of medical evidence. It is not to be treated as sacrosanct in its absolute terms. Further, in Malay Kumar Ganguly v. Sukumar Mukherjee, it has been held by this Court that, the opinion could be admitted or denied. Whether such evidence could be admitted or how much weight should be given thereto, lies within domain of Court.

Evidence of PWs 5, 8 and 12 are found to be trustworthy and fully corroborated with each other on the point of alleged incident with regard to the involvement of the Appellants herein. Further, there evidence fully corroborates with the medical evidence given by the Doctor who conducted the post mortem of the deceased. Even the injuries sustained by PW-8 while rescuing the deceased from the clutches of the Accused persons have been examined and proved by Doctor (PW-11) who found them to be of grievous nature.

The prosecution has examined material witnesses, viz., PW-5, PW-8 and PW-12 who are eye-witnesses to the alleged incident. High Court was not right in discarding the testimony of PW-5 and PW-12 taking into consideration the role played by the Appellants herein. The presence of the above witnesses at place of occurrence is clearly established. Though there are certain discrepancies but those are so minor in nature that it cannot harm the case of the prosecution. Their evidence inspires confidence and is natural one which clearly shows that, the Accused persons formed an unlawful assembly along with others with a common object to murder the deceased which was done by causing injuries to his person using fatal weapons which fully corroborates with the oral evidence as well as the post mortem report of the Doctor (PW-10) who conducted the post mortem. There is no conflict between the oral evidence of the above witnesses and medical evidence of PW-10 as alleged by learned Counsel for Appellants, particularly, on the point of injuries caused to the deceased on face and head using swords and iron pipes. There is no infirmity in orders passed by the High Court with regard to conviction and sentence of Appellants-accused.

Relevant

Malay Kumar Ganguly v. Sukumar Mukherjee MANU/SC/1416/2009
: AIR 2010 SC 1162

Tags : Conviction Validity

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