Jharkhand High Court
Dukhiya Majhi vs The State Of Jharkhand on 13 September, 2022
Author: Rongon Mukhopadhyay
Bench: Rongon Mukhopadhyay, Ambuj Nath
Cr. Appeal (D.B.) No. 998 of 2007
[Against the judgment of conviction dated 24.05.2007 and order of
sentence dated 26.05.2007 passed by Mohammed Kasim, learned
Additional Sessions Judge, (Fast Track Court) - II, Seraikella-
Kharsawan at Seraikella in Sessions Trial No. 46 of 2006]
...........
Dukhiya Majhi ... ... Appellant
Versus
The State of Jharkhand ... ... Respondent
...........
For the Appellant : Mr. Manoj Tandon, Advocate
For the State : Ms. Priya Shrestha, Spl.P.P.
PRESENT
HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY
HON'BLE MR. JUSTICE AMBUJ NATH
...........
C.A.V. on 04.08.2022 Pronounced on 13. 09.2022 Heard Mr. Manoj Tandon, learned counsel for the appellant and Ms. Priya Shrestha, learned Spl.P.P.
2. This appeal is directed against the judgment of conviction dated 24.05.2007 and order of sentence dated 26.05.2007 passed by Mohammed Kasim, learned Additional Sessions Judge, (Fast Track Court) - II, Seraikella- Kharsawan at Seraikella in Sessions Trial No. 46 of 2006 whereby and whereunder the appellant has been convicted for the offences punishable under Sections 341, 324 and 302 of the Indian Penal Code and has been sentenced to undergo rigorous imprisonment for life along with a fine of Rs. 1,000/- for the offence under Section 302 of the Indian Penal Code, rigorous imprisonment for one month for the offence under Section 341 of the Indian Penal Code and rigorous imprisonment for two years for the offence under Section 324 of the Indian Penal Code. In default of payment of fine the appellant has been further sentenced to undergo simple imprisonment for fifteen days. All the sentences are to run concurrently.
3. The fardbeyan of Suman Majhi was recorded on 03.02.2006 at 11:00 a.m. wherein he has stated that in the night of 02.02.2006 Dukhiya Majhi (appellant) had dug out a foundation in the courtyard of the informant and at about 8-9 a.m., he was watering the dugout foundation at which the mother of the informant namely Gouri Majhian had protested by saying that it
-2- Cr. Appeal (D.B.) No. 998 of 2007 was a disputed land and asked him to forebear from such act. At this, Dukhiya Majhi picked up a spade lying nearby and assaulted her on her head and other parts of her body and she fell down on the ground by raising an alarm to save her. When the informant came to the rescue of his mother he was also assaulted with the spade on his head and he sustained bleeding injuries. The father of the informant had arrived at the place of occurrence and on seeing his wife and son in an injured condition, he proceeded to the police station on a bicycle.
It has been alleged that the accused followed him and by stopping him near the house of Ghasiram Mahato had assaulted him 3-4 times with the spade in his hand and resultantly the father of the informant fell down on the earth. When on alarm raised by the informant, Gurubari and other villagers had arrived, the accused had fled away from the place of occurrence. When the police had arrived at the place of occurrence, the parents of the informant were taken for treatment to Seraikella Hospital.
Based on the aforesaid allegations Seraikella P.S. Case No. 9 of 2006 was instituted against Dukhiya Majhi under Sections 341, 323, 307, 324 of the Indian Penal Code. Later on Section 302 of the Indian Penal Code was added as the injured Jadu Majhi had died during treatment. On conclusion of investigation, charge- sheet was submitted under Sections 341, 323, 324, 307 and 302 of the Indian Penal Code against the accused Dukhiya Majhi. After cognizance was taken, the case was committed to the Court of Sessions where it was registered as Sessions Trial No. 46 of 2006. Charge was framed under Sections 341, 323, 307 and 302 of the Indian Penal Code and the contents of the charge was read over and explained to the accused in Hindi to which he pleaded not guilty and claimed to be tried.
5. In course of trial the prosecution has examined as many as sixteen witnesses in support of its case.
6. P.W.1 (Permanand Mahato) has deposed that the incident is of 03.02.2006 around 08:30 a.m. and he was at that time in the shop of Ghasiram Mahato for purchasing some puja materials. He
-3- Cr. Appeal (D.B.) No. 998 of 2007 has stated that a dispute was going on between Gouri Majhain and Dukhiya Majhi as Dukhiya Majhi was digging the foundation for constructing a wall in the courtyard which was being objected to by Gouri Majhain. On hearing the commotion, he had gone to the place of occurrence and tried to settle the dispute by highlighting the fact that a case with respect to the disputed land is already pending. He thereafter returned back to his house. Later on he came to know that Dukhiya Majhi had assaulted Gouri, Suman and Jadu Majhi. When he went to the place of occurrence, he found all three in an injured condition. The police had come and his statement was recorded.
In cross-examination, he has deposed that the land dispute was going on since long. He had not witnessed the incident of assault. He has further stated that the disputed land is in the name of Gouri Majhain.
7. P.W.2 (Ghasiram Mahato) has stated that the incident is of 03.02.2006 at the time of Saraswati Puja. It was around 09:00 a.m. and he was in his shop. Jadu Majhi had come on cycle and stood in front of the door. At that point of time, Dukhiya Majhi had come and assaulted Jadu Majhi on his head with a rod. Jadu Majhi on account of such assault fell down. He had closed the shop out of fear and when he came out of another door he had seen two women shouting and trying to lift up Jadu Majhi. He tore the vest of Jadu Majhi and used it as a bandage on his head. The police had come to the village and had sent all the injured persons to the hospital.
In cross-examination, he has deposed that when Dukhiya Majhi was assaulting Jadu Majhi, he was in his shop. He had witnessed the incident of assault. He had not seen the assault committed inside the house of Gouri Majhain. He had heard that there was a land dispute between Dukhiya Majhi and Jadu Majhi.
8. P.W.3 (Gurubari Majhain) has deposed that at the time of the incident she was in her house. Dukhiya Majhi was digging a foundation in the courtyard in order to construct a wall to which Gouri Majhain had protested and this led to a quarrel and assault
-4- Cr. Appeal (D.B.) No. 998 of 2007 upon Gouri Majhain, Suman and Jadu Majhi. She has stated that Jadu Majhi was assaulted with a rod on his head. She and the others had come out and picked up Jadu Majhi from the ground. When the police came, all were sent to Seraikella Hospital for treatment. Jadu Majhi died in TMH, Jamshedpur during treatment.
In cross-examination, she has deposed that there was a dispute between Jadu Majhi and Koko Majhi with respect to the courtyard but there was no dispute with the accused. The quarrel between the deceased and the accused had occurred on the day of the incident itself.
She has witnessed the incident. She has stated that the accused had assaulted Jadu Majhi four times and Gouri Majhain twice. When she reached near Jadu Majhi blood was coming out. Srimati Majhain and Suman Majhi had also reached near Jadu Majhi
10. P.W.4 (Bhola Majhi @ Tuddu) has stated that it was around 09:00 a.m. on 03.02.2006 and he was in his field when he heard some commotion at which he had proceeded towards Bhurkuli village. When he had reached the village road, he had seen Jadu Majhi in an injured condition. He came to know that Dukhiya Majhi had assaulted Jadu Majhi. Jadu Majhi was taken to the hospital but he died.
In cross-examination, he has deposed that he had not witnessed the incident.
11. P.W.5 (Srimati Majhain) has stated that at the time of incident she was in her house. She had witnessed the assault upon Suman and Gouri Majhain by Dukhiya Majhi with a spade. The assault occurred since Gouri Majhain was protesting the act of Dukhiya Majhi in digging a foundation in the courtyard. After sometime in front of the shop of Ghasiram Mahato, Dukhiya Majhi had assaulted Jadu Majhi from the back with a spade. She and Gurubari had reached the spot where Jadu Majhi was lying and had bandaged his head. The police had come and all the injured were sent to Sub Divisional Hospital, Seraikella and from there
-5- Cr. Appeal (D.B.) No. 998 of 2007 Jadu Majhi was brought to TMH, Jamshedpur where had died after 3-4 days in course of treatment.
In cross-examination, she has deposed that in her statement to the police she had stated about witnessing the incident. The courtyard of Gouri Majhain and the accused is in front of each other. When she and Gurubari had reached at the place of occurrence, they had seen Gouri Majhain and her son lying on the ground. When they went near Gouri Majhain, they came to know that Jadu Majhi had suffered assault on the head, at which they reached to the place of occurrence where Jadu Majhi was lying. A bicycle was also lying beside Jadu Majhi. She had met the accused on the day of occurrence and had tried to dissuade her from resorting to assault.
12. P.W.6 (Gouri Majhain) is the wife of Jadu Majhi who was murdered by Dukhiya Majhi. She has deposed that Dukhiya Majhi had assaulted her when she protested the act of Dukhiya Majhi in digging a foundation in the courtyard. When her son Suman Majhi came to her rescue, he was also assaulted by Dukhiya Majhi with a spade on head. He was taken to Tata Hospital and when she returned home after six days, she came to know that her husband had expired due to the assault committed upon him by Dukhiya Majhi.
In cross-examination, she has deposed that her marriage was solemnized with Jadu Majhi about 15-20 years back. Earlier her elder sister was marred to Jadu Majhi. The courtyard is recorded in the Khatiyan in the name of her father and Dhullu Majhi. Her father in his life time had gifted it to her. She has stated that there are houses all around the courtyard.
13. P.W. 7 (Suman Majhi) is the informant who has deposed that on 03.02.2006 in between 8-9 a.m. he was in his house. When Dukhiya Majhi started sprinkling water in the courtyard in order to dig a foundation, his mother protested at which she was assaulted by Dukhiya Majhi with a spade and she fell down unconscious. When he went to her rescue, he was also assaulted on the head with the spade by Dukhiya Majhi.
-6- Cr. Appeal (D.B.) No. 998 of 2007 His father was going to the police station to inform about the incident and as soon as he reached near the shop of Ghasiram Mahato, Dukhiya Majhi came from behind and assaulted him with a spade 3-4 times. His father fell down unconscious. The injured were taken to the Sub-Divisional Hospital, Seraikella where his statement was recorded. He has identified his signature in the fardbeyan which has been marked as Exhibit - 1. His father was shifted to TMH, Jamshedpur where after three days he succumbed to his injuries.
In cross-examination he has stated that he had seen the assault committed upon his mother. He has further stated that Gurubari and Srimati Majhain had come after hearing about the assault. He had seen the assault committed upon his father. When his father fell down, he had reached the place of occurrence and other villagers had also assembled.
He does know about existence of a case between his mother and Dukhiya Majhi. Both his mother and Dukhiya Majhi are claiming the land as their own.
14. P.W. 8 (Dr. Lalan Choudhary) was posted as an Assistant Professor in the Department of Forensic Medicine at MGM, Jamshedpur and on 06.02.2006 he had conducted autopsy on the dead body of Jadu Majhi and had found the following:-
A). Stiched wounds
1. 5 cm. with five stiched obliquely over Rt. Forehead.
2. 1 cm. with one stiched over Rt. cheek.
3. 7 cm. with six stiched over Rt. occipital scalp
4. 3 cm. with three stiched over Rt. temporal scalp. B). Abrasion:
1. 2 cm. x 0.75 cm over left leg lower part.
2. .25 cm. x 1.5 cm. over Rt. leg lower part.
C). Frontal scalp contused 10 cm. x 6 cm. rt. temporal Occipital scalp contused, 15 cm. x 8 cm linear fracture, Rt. temporal bone with 12 cm. Extradural blood clot over frontal area. Whole brain contused. Subdural - subarachnoid blood clot over fore brain and lt. perital region of brain.
The cause of death was opined to be due to head injuries. All the injuries were caused by hard and blunt object. He has proved the postmortem report which has been marked as Exhibit - 2. In cross-examination, he has deposed that all the injuries may
-7- Cr. Appeal (D.B.) No. 998 of 2007 have been caused by accident like vehicle accident.
15. P.W. 9 (Chandra Tudu) has proved his signature in the inquest report which has been marked as Exhibit - 3.
16. P.W. 10 (Sonaram Soren) has proved his signature in the Inquest Report which has been marked as Exhibit - 3/1.
17. P.W. 11 (Dashrath Majhi) has stated that on 03.02.2006 he was on duty in the residence of the District and Sessions Judge. At about 08:00 p.m. he came to know that his parents and brother were assaulted by Dukhiya Majhi. On 04.02.2006 he had gone to TMH, Jamshedpur and had seen Gouri Majhain was seriously injured while Suman had simple injuries. When he asked about his father, Suman had disclosed that he was admitted at TMH, Jamshedpur. Suman had disclosed to him the occurrence as it happened.
In cross-examination he has deposed that he came to know about the incident on 03.02.2006.
18. P.W. - 12 (Suru Majhi) has stated that on 03.02.2006, on getting an information from Aazad Mahato about the assault committed upon his parent and brother, he had come to Bhurkuli village and when he could not find them, he had gone to MGM. Suman had disclosed about the occurrence. He has stated that his father had died on 06.02.2006 at TMH during treatment.
In cross-examination he has stated that he had not witnessed the occurrence.
19. P.W. 13 (Sunder Majhi) has deposed that on 03.02.2006 he was at Rajnagar and one Dinesh Kumar Mahato had come from Bhurkuli to Rajnager and stated that Dukhiya Majhi had assaulted Jadu Majhi, Gouri Majhain and Suman Majhi. On getting such information, he had gone to Seraikella Hospital and thereafter to MGM, Jamshedpur where he found them in an injured condition. On 06.02.2006 his father expired at TMH. Suman Majhi had disclosed to him about the entire incident. He has also stated that a case was already pending with respect to the land dispute.
In cross-examination he has deposed that he had not
-8- Cr. Appeal (D.B.) No. 998 of 2007 witnessed the occurrence. He has stated that there was a litigation with Dukhiya Majhi.
On recall in his examination-in-chief, he has stated that after the death of his father his statement was recorded at TMH by Bistupur Police. He has proved his fardbeyan which has been marked as Exhibit - 4.
In cross-examination he has stated that Suman Majhi had disclosed to him that Dukhiya Majhi had assaulted and injured his father.
20. P.W. -14 (Jagarnath Majhi) has stated that the incident is of a year back and he was at Gitilata when Aazad Mahato had come and informed that Dukhiya Majhi had assaulted and injured Jadu Majhi, Gouri Majhain and Suman Majhi. On such information, he went to Seraikella Hospital where he found all three in an injured condition. The incident was disclosed to him by Suman Majhi.
21. P.W. 15 (Nav Kumar Soren) was posted as A.S.I. at Seraikella Police Station and on 03.02.2006 at about 10:00 am he had received an information that a person had suffered serious injuries in Bhurkuli village. After making station diary entry, he along with other police personnel reached Bhurkuli village and thereafter took the injured persons to Seraikella Hospital. He had recorded the statement of Suman Majhi. He had himself taken over the investigation. He has proved the endorsement of the Officer In- charge in the fardbeyan and which has been marked as Exhibit - 4/1. He has also proved the formal FIR which has been marked as Exhibit - 5. He had recorded the restatement of the informant and the statement of other witnesses. He had inspected the place of occurrence. The first place of occurrence is at a distance of four yards from the house of Suman Majhi at Village Bhurkuli. The second place of occurrence is 16 yards west from the first place of occurrence in an unmetalled road near the shop of Ghasiram Mahato.
He has proved the inquest report which has been marked as Exhibit - 6. He had obtained the injury reports of Suman Majhi and Gouri Majhain and postmortem report of Jadu Majhi and on
-9- Cr. Appeal (D.B.) No. 998 of 2007 the orders of the supervising authority, he had submitted charge sheet.
In cross-examination he has deposed that Ghasiram Mahato had given a statement that there was commotion in front of his shop and when he came out he had seen Jadu Majhi lying on the load drenched in blood. The witness Permanand Mahato had stated about coming to know about the occurrence from the informant. After reaching the place of occurrence, he had found the signs of digging foundation at the place of occurrence.
22. P.W. - 16 (Dr. Barial Mardi) was posted as a Medical Officer at Sub Divisional Hospital, Seraikella and on that day he had examined Jadu Majhi and had found the following injuries:-
1). Frontial region 4"X1/2"X deep bone.
2). Posterior to Rt. ear 4"X1/2"X bone deep, 2"X1/2"X bone deep1 ½" X ½" X bone deep.
(i) the opinion on injury no. (i) was reserved while injury no.
(ii) was opined to have been caused by sharp weapon.
He has proved the injury report which has been marked as Exhibit - 7.
On the same day, he had examined Gouri Majhain and had found the following injuries.
1). Incised wound back side of the scalp, 3 ½"X ½" X bone deep.
The nature of injury was simple and it was caused by sharp cutting weapon. He has proved the injury report which has been marked as Exhibit - 7/1. He had also examined Suman Majhi on the same day and had found following injuries.
1). Skull injury (cut wound) 4"X1/2"X bone deep.
The nature of injury was opined to be simple caused by sharp cutting weapon.
He has proved the injury report which has been marked as Exhibit - 7/2.
23. The statement of the accused was recorded under Section
-10- Cr. Appeal (D.B.) No. 998 of 2007 313 CrPC in which he has simply denied about his involvement.
24. Mr. Manoj Tandon, learned counsel for the appellant has submitted that though several witnesses claimed to have seen the occurrence but on a careful scrutiny of their evidence it would transpire that none of the independent witnesses are eye- witnesses. He has submitted that the dispute had occurred with respect to digging of a foundation in the courtyard which was objected by Gouri Majhain and resultantly the assault had taken place. The appellant did not have any arms with him and is said to have committed assault with a spade lying at the place of occurrence. The same, therefore, would at best attract Section 304 part II of the Indian Penal Code. It has been submitted that the medical report does not corroborate the manner of assault as attributed by the witnesses to the appellant. It has also been submitted that the appellant is in custody for more than sixteen years.
25. Ms. Priya Shrestha, learned Spl.P.P. has drawn the attention of the Court to the evidence of P.W. - 6 and P.W. - 7 who are the injured witnesses and who have stated about the assault committed upon them by the appellant. She has also referred to the evidence of P.W. - 2 who was present at the second place of occurrence when Jadu Majhi was assaulted by the appellant. Learned Spl.P.P. has also led us through the evidence of P.W. - 3 and P.W. - 5 who had picked up Jadu Majhi and had tied his wound with a cloth.
26. We have considered the rival submissions and have also perused the Lower Court Records.
27. The genesis of the occurrence seems to be the digging of a foundation in the courtyard which triggered protests from Gouri Majhain (P.W. - 6) and as a retaliation, she was struck by a spade by the appellant on head. When her son Suman Majhi (P.W. - 7) had intervened, he was also assaulted. The father of the informant Jadu Majhi in order to report such incident proceeded to the police Station on a bicycle but he was confronted near the shop of Ghasiram Mahato (P.W. - 2) by the appellant who had
-11- Cr. Appeal (D.B.) No. 998 of 2007 given indiscriminate blows upon him with a rod. P.W. - 6 and P.W.
- 7 survived the assault but Jadu Majhi succumbed to his injuries after six days of the occurrence at TMH.
28. The place of occurrence is divided into two parts "the first is the courtyard adjacent to the house of P.W. - 7 while the second is near the shop of P.W. - 2".
So far as the first place of occurrence is concerned, P.W. - 6 and P.W. - 7 who are the injured witnesses were present. Although Gouri Majhain (P.W. - 3) had in her evidence claimed to have seen the first occurrence but neither P.W. - 6 nor P.W. - 7 have stated about the presence of P.W. - 3. Even Srimati Majhain (P.W. - 5) has stated that when she and P.W. - 3 had reached the place of occurrence they had seen Gouri Majhain and Suman Majhi lying on the ground. Both had thereafter rushed to the place where Jadu Majhi was lying and he was lifted up and his wound bandaged. It therefore, appears that P.W. - 3 and P.W. - 5 are not the eye-witnesses to the assault committed upon P.W. - 6 and P.W. - 7. At the same time, the testimony of P.W. - 6 and P.W. - 7 cannot be doubted as their evidence appears to be corroborative and consistent. Both have proved the genesis of the occurrence and the manner of assault. Though both P.W. - 6 and P.W. - 7 had suffered similar injuries as per the Exhibit - 7/1 and 7/2 but both had suffered injuries on the back of scalp and skull respectively which would suggest the intention of the appellant.
29. The second place of occurrence is in front of the house of P.W. - 2. Both P.W. - 2 and P.W. - 7 are the eye-witnesses. P.W. - 2 had fairly admitted that he had not seen the incident which occurred in the house of P.W. - 6. Both P.W. - 2 and P.W. - 7 have stated about the appellant committing assault upon Jadu Majhi though there appears to be some discrepancies with respect to the weapon of assault.
30. The Investigating Officer (P.W. - 15) has deposed that Ghasiram Mahato (P.W. - 2) had stated before him that he came out from his shop and he had seen that Jadu Majhi was lying on the ground. Even if the evidence of P.W. - 2 on the point of
-12- Cr. Appeal (D.B.) No. 998 of 2007 witnessing the incident is discarded, the evidence of P.W. - 7 inspires confidence as it is shorn of any exaggeration and is consistent even with respect to the contents of the fardbeyan. It is, therefore, established beyond doubt that it was the appellant who had caused assault upon P.W. - 6 and P.W. - 7 and Jadu Majhi.
So far as the contention of Mr. Tandon that the ocular evidence does not corroborate the medical evidence is concerned, we may refer to the case of Kamaljit Singh vs. State of Punjab reported in (2003) 12 SCC 155 wherein, it has been held as follows:-
"8. It is trite law that minor variations between medical evidence and ocular evidence do not take away the primacy of the latter. Unless medical evidence in its term goes so far as to completely rule out all possibilities whatsoever of injuries taking place in the manner stated by the eyewitnesses, the testimony of the eyewitnesses cannot be thrown out. (See Solanki Chimanbhai Ukabhai v. State of Gujarat). The positions was illuminatingly and exhaustively reiterated in State of U.P. v. Krishna Gopal. When the acquittal by the trial court was found to be on the basis of unwarranted assumptions and manifestly erroneous appreciation of evidence by ignoring valuable and credible evidence resulting in serious and substantial miscarriage of justice, the High Court cannot in this case be found fault with for its well-merited interference."
31. We may also refer to the case of State of Uttarakhand vs. Darshan Singh reported in (2020) 12 SCC 605 wherein, the conflict in medical evidence and ocular evidence considered in several cases have been noted which reads as follows: -
"43. In Abdul Sayeed v. State of M.P., this Court discussed elaborately the case law on the subject of conflict between medical evidence and ocular evidence: (SCC pp. 272-74, paras 32-39) "Medical evidence versus ocular evidence
32. In Ram Narain Singh v. State of Punjab this Court held that where the evidence of the witnesses for the prosecution is totally inconsistent with the medical evidence or the evidence of the ballistics expert, it amounts to a fundamental defect in the prosecution case and unless reasonably explained it is sufficient to discredit the entire case.
33. In State of Haryana v. Bhagirath it was held as follows: (SCC p. 101, para
15) '15. The opinion given by a medical witness need not be the last word on the subject. Such an opinion shall be tested by the court. If the opinion is bereft of logic or objectivity, the court is not obliged to go by that opinion. After all opinion is what is formed in the mind of a person regarding a fact situation. If one doctor forms one opinion and another doctor forms a different opinion on the same facts it is open to the Judge to adopt the view which is more objective or probable. Similarly if the opinion given by one doctor is not consistent with probability the court has no liability to go by that opinion merely because it is said by the
-13- Cr. Appeal (D.B.) No. 998 of 2007 doctor. Of course, due weight must be given to opinions given by persons who are experts in the particular subject.'
34. Drawing on Bhagirath case, this Court has held that where the medical evidence is at variance with ocular evidence, 'it has to be noted that it would be erroneous to accord undue primacy to the hypothetical answers of medical witnesses to exclude the eyewitnesses' account which had to be tested independently and not treated as the "variable" keeping the medical evidence as the "constant".'
35. Where the eyewitnesses' account is found credible and trustworthy, a medical opinion pointing to alternative possibilities cannot be accepted as conclusive. The eyewitnesses' account requires a careful independent assessment and evaluation for its credibility, which should not be adversely prejudged on the basis of any other evidence, including medical evidence, as the sole touchstone for the test of such credibility.
'21. ... The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witnesses held to be creditworthy; consistency with the undisputed facts, the "credit" of the witnesses; their performance in the witness box; their power of observation, etc. Then the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation.' [Vide Thaman Kumar v. State (UT of Chandigarh) and Krishnan v. State at SCC pp. 62-63, para 21.]
36. In Solanki Chimanbhai Ukabhai v. State of Gujarat this Court observed: (SCC p. 180, para 13) '13. Ordinarily, the value of medical evidence is only corroborative. It proves that the injuries could have been caused in the manner alleged and nothing more. The use which the defence can make of the medical evidence is to prove that the injuries could not possibly have been caused in the manner alleged and thereby discredit the eyewitnesses. Unless, however, the medical evidence in its turn goes so far that it completely rules out all possibilities whatsoever of injuries taking place in the manner alleged by eyewitnesses, the testimony of the eyewitnesses cannot be thrown out on the ground of alleged inconsistency between it and the medical evidence.'
37. A similar view has been taken in Mani Ram v. State of U.P., Khambam Raja Reddy v. Public Prosecutor and State of U.P. v. Dinesh.
38. In State of U.P. v. Hari Chand this Court reiterated the aforementioned position of law and stated that: (SCC p. 545, para 13) '13. ... In any event unless the oral evidence is totally irreconcilable with the medical evidence, it has primacy.'
39. Thus, the position of law in cases where there is a contradiction between medical evidence and ocular evidence can be crystallised to the effect that though the ocular testimony of a witness has greater evidentiary value vis-à-vis medical evidence, when medical evidence makes the ocular testimony improbable, that becomes a relevant factor in the process of the evaluation of evidence. However, where the medical evidence goes so far that it completely rules out all possibility of the ocular evidence being true, the ocular evidence may be disbelieved."
(emphasis in original)
32. The discrepancy in the medical evidence vis-à-vis the ocular evidence as pointed out by the learned counsel for the appellant will have no bearing in the present case as no improbability has been detected in the ocular evidence so as to render them doubtful and in view of the consistency of ocular evidence the same would overwhelm the medical evidence.
33. Mr. Manoj Tandon, learned counsel appearing for the appellant in support of his alternative argument that the offence
-14- Cr. Appeal (D.B.) No. 998 of 2007 alleged does not attract conviction under Section 302 of the Indian Penal Code has relied upon Lakshmi Chand and Another vs. State of Uttar Pradesh reported in (2018) 9 SCC 704 and Bhagirath vs. State of Madhya Pradesh reported in (2019) 17 SCC 581.
In Lakshmi Chand and Another vs. State of Uttar Pradesh (Supra) it has been held as follows:-
"7. We have considered the submissions on behalf of the parties. The occurrence undoubtedly had taken place on the spur of the moment without premeditation. It cannot be said that the appellants had any common intention to kill or knowledge that death was likely to ensue. The appellants only intended to vent their ire against their neighbour for having assaulted their bullocks. Having been better equipped with an iron rod and a knife, there was no occasion for them to scamper away when confronted by the others especially when PW 1 was an old man aged about 61 years. If there existed no common intention each appellant was liable for his own individual acts as observed in Darshan Singh."
34. In the case of Bhagirath vs. State of Madhya Pradesh (supra) it has been held as follows:
"7.1. The Fourth Exception to Section 300 IPC deals with death committed in sudden fight without premeditation. The sudden fight implies the absence of premeditation. Even as per the evidence of P.W. 6, there was a wordy quarrel and in that quarrel the appellant inflicted farsi blow on the head of the deceased. As the injuries inflicted on the deceased in the sudden fight between the deceased and the accused party, there was no premeditation. One injury was caused to the deceased by farsi blow on the head which indicates that the appellant has not taken undue advantage of the deceased.
7.2 The manner, the occurrence and the injury inflicted on the deceased attract Exception 4 to Section 300. In the facts and circumstances of the case, the conviction of the appellant is modified under Section 304 Part I IPC and the sentence is reduced to the period already undergone."
35. None of the judgments cited by the learned counsel for the appellant is applicable in the fact and circumstances of the present case. The first part of the occurrence could have been construed to have taken place at the spur of the moment but so far as the assault committed upon Jadu Majhi is concerned, it appears that the appellant had chased him while he was going to the police Station to report about the incident and assaulted him
-15- Cr. Appeal (D.B.) No. 998 of 2007 on his head which ultimately proved fatal. This act of the appellant decimates the contention of the learned counsel for the appellant that the act was not premeditated. In fact, if we consider the circumstances in its totality it would seem that it was the appellant who had triggered the confrontation by his act of digging the foundation in the courtyard and had, thereafter, resorted to a violent act injuring two persons (P.W. - 6 and P.W. - 7) and committing the death of another (Jadu Majhi)
36. In view of the circumstances noted above, we come to the conclusion that the learned trial court had rightly convicted the appellant for the offences under Section 341, 324 and 302 of the Indian Penal Code and has sentenced him to undergo rigorous imprisonment for life along with a fine of Rs. 1,000/- for the offence under Section 302 of the Indian Penal Code, rigorous imprisonment for one month for the offence under Section 341 of the Indian Penal Code and rigorous imprisonment for two years for the offence under Section 324 of the Indian Penal Code vide judgement of conviction dated 24.05.2007 and order of sentence dated 26.05.2007 passed by Mohammed Kasim, learned Additional Sessions Judge, (Fast Track Court) - II, Seraikella- Kharsawan at Seraikella in Sessions Trial No. 46 of 2006 and having found no reason to conclude otherwise, this appeal fails and the same is, hereby, dismissed.
37. Pending I.A., if any, also stands disposed of.
(Rongon Mukhopadhyay, J.) (Ambuj Nath, J.) Umesh/NAFR