RAM SWAROOPversusSTATE OF RAJASTHAN

                          (2008] 5 S.C.R. 484


A                        RAM SWAROOP
                                v.
                     STATE OF RAJASTHAN
                 Criminal Appeal No. 548 of 2008
                          MARCH 25, 2008
B
       (DR. ARIJIT PASAYAT AND P. SATHASIVAM, JJ.)
        Penal Code, 1860; S.302:
        Criminal trial:
c        Murder - Oral evidence vis-a-vis medical evidence -
  Testimony of - Accused and his accomplice attacked the
  deceased with a knife causing bleeding injury - Deceased
  succumbed to injuries - Fl.R. - Charge-sheet - Trial Court
  found accused guilty of committing murder of deceased and
D sentenced him accordingly - Affirmed by High Court -
  Correctness of - Held: Oral evidence has to get primacy but.       .,,
  medical evidence is basically opinionative - It is only when
  medical evidence ruled out a injury as claimed to have been
  inflicted as per oral testimony, the Court could draw inferences
E -  Medical evidence could be met to repel testimony of
  eyewitnesses only if it is so conclusive to rule out even the
  version of eyewitnesses to be true - Thus, discarding the
  testimony of eyewitness on strength of medical opinion not
  conducive to the administration of criminal justice - In the
F instant case, there were certain minor variations in the
  evidence of PWs. 3 & 4, which do not, in any way, corrode the
  credibility of prosecution version - Hence, trial Court was
  justified in placing reliance on their evidence holding the
                                                                     •
  accused-appellant guilty - Eye-witnesses - Testimony of
G      According to the complainant, on the fateful day,
  when he was standing along with the deceased and
  another persons, on a trivial matter, accused-appellant
  and his accomplice attacked on the deceased. Appellant             ,/;

  allegedly stabbed the deceased with a knife. The
H                           484
                 RAM SWAROOP v. STATE OF RAJASTHAN                 485

       -.
            deceased fell down and taken to Hospital, where he was A
            declared dead. An FIR was lodged by the complainant.
            Matter was investigated and charge-sheet was filed
            against the accused for committing the offence
            punishable u/s.302 IPC and co-accused for committing
•           the offence u/s.302 r/w s.34 IPC. Trial Court convicted the B
    ~       accused for committing offence punishable u/s.302 IPC
            and sentenced him accordingly but acquitted the co-
            accused as evidence against him was not sufficient to
            convict him. Aggrieved, the appellant filed an appeal
            thereagainst, which was dismissed by the High Court. c
            Hence the present appeal.
                 Accused-appellant contended 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; and that the D
       '    manner of attack and infliction of injuries as stated by PWs
            3 & 4 do not fit into the medical evidence.
                 Dismissing the appeal, the Court
                   HELD: 1.1 So far as the alleged variance between       E
            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,     F
            then only in a given case the Court has to draw adverse
            inference. (Para - 8) [488-E]
                  1.2 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 G
            t~e 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 H
    486       SUPREME COURT REPORTS                  [2008] 5 S.C.R.

                                                                       ,...
A 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
8 eyewitness simply on the strength of such opinion
  expressed by the medical witness is not conducive to the
                                                                          ,.
  administration of criminal justice. (Para - 9) [488-G & H;
  489-A & BJ
          Mange vs. State of Haryana (1979) 4 SCC 349; State of
c UP vs. Krishna Gopal and Anr. AIR (1988) SC 2154; Ram
    Dev and Anr. vs. State of UP. (1995) Supp. 1 SCC 547; State
    of UP vs. Harban Sahai and Ors. (1998) 6 SCC 50 and
    Ramanand Yadav vs. Prabhu Nath Jha & Ors. (2003) 12SCC
    606 - relied on.
D
        2. 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
E Courts below were, therefore, justified in placing reliance
  on their evidence and holding the accused appellant
  guilty. (Para - 11) [489-C & DJ
         CRIMINALAPPELLATE JURISDICTION: Criminal Appeal
F   No. 548 of 2008.
         From the Judgment and Order dated 26. 7.2005 of the High
    Court of Judicature for Rajasthan at Jodhpur in D.8. Crl. A. No.
    473/2001.
          Radha Shyam Jena for the Appellant.
G
          Milind Kumar and Aruneshwar Gupta for the Respondent.
          The Judgment of the Court was delivered by                          ;;.


          DR. ARIJIT PASAYAT, J. 1. Leave granted.                                  loo
H
                  RAM SWAROOP v. STATE OF RAJASTHAN                      487
                         [DR. ARIJIT PASAYAT, J.]
 _,
                 2. Challenge in this appeal is to the judgment rendered by    A
            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.                           B
-.i               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   c
              'deceased') and Vijay Singh. Around 4 P.M. 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
                                                                                D
              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 E
              complainant and others were attending to Sumer Singh,
              Shrawan and accused appellant Ram Swaroop ran way. Sumer
              Singh's 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 F
              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. G
              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. Th~ trial H
    488        SUPREME COURT REPORTS                    [2008] 5 S.C.R.


A 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.
B
         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
c   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 medical evidence.
         7. Learned counsel for the respondent-State on the other
D
    hand supported the judgment of the trial court as affirmed by                     ~


    the High Court.                                                        f


       8. So far as the alleged variance between medical
  evidence and ocular evidence is concerned, it is trite law that
E 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 inference.
F       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
G 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
H the other depending upon the manner the question was asked.
       RAM SWAROOP v. STATE OF RAJASTHAN                        489
              (DR ARIJIT PASAYAT, J.]

  But the answers given by the witness to such questions need          A
  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.                              B
      10. Similar view has also ·been expressed in Mange v.
 State of Haryana (1979(4) SCC 349), State of UP 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 f.?amanand Yadav v.               C
 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
                                                                       0
 minor variations w,hich 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 dismi~sed.         ·
                                                                       E
      12. We record our appreciation for the able manner in which
 Mr. Radha Shyam Jena, Learned Amicus. Curie highlighted
 various points.

                                               Appeal dismissed.
                                                                       F