JUDGMENT Following judgment of the Court was delivered by Sunil Kumar Sinha, J. (1) Appellant Balak Ram @ Baul stands convicted u/s 302 IPC for commission of murder of his wife, Jakni Bai, and sentenced to undergo imprisonment for life by the Sessions Judge, Surguja (Ambikapur) Chhattisgarh, in Sessions Trial No. 68/2002 on 23.10.2002. (2) Deceased, Jakni Bai, was resident of village Kedma. She was married to appellant, who was resident of village Jivualiya, which is at a distance of 1+ Km from village Kedma. On 2.11.2001, the deceased came to her parents' place in village Kedma at about 10-11.00 a.m. for taking whey (Mathah), where she was retained by her mother. The allegations are that in the evening at about 6.00 p.m., the appellant came there and assaulted the deceased with hands, fists and chappel (slipper). She sustained some external injuries. Her two teeth were uprooted. This was witnesses by the mother of the deceased namely Padwaien Bai (PW-3). Manta Ram (PW-2), brother of the deceased, was not in the house on 2.11.2001 as he had gone for guarding the ground- nut crops. When he returned on 3.11.2001, the story was narrated to him by his mother. Jakni Bai died at about 7.00 p.m. on 3.11.2001 on account of injuries sustained by her. The matter was reported to the concerned police station on 4.11.2001 by brother of the deceased, Manta Ram (PW-2), on which, merg intimation (Ex.-P/6) and a First Information Report (Ex.-P/3) were recorded. (3) On such information, the Investigating Officer left for the scene of occurrence, gave notice (Ex.-P/4) to the Panchas and prepared inquest (Ex.-P/5) on the body of the deceased. The dead body of the deceased was sent for its post-mortem to Community Health Center, Udaipur through requisition Ex.-P/9, where the post-mortem examination was conducted by Dr. I.D. Bhatnaagar (PW-5), who prepared his report Ex.-P/18. The Autopsy Surgeon noticed the following injuries on the body of the deceased: (i) Lacerated wound over left eye size 1 inch x + inch x + inch; (ii) Bruise over upper lip with laceration on upper gum. Two teeth of upper jaw were uprooted; (iii) Bruise around neck which may have been caused by throttling ; (iv) Bruise over right chest size 3 inch x 3 inch & (v) Abrasion over left forearm size 2 inch x 2 inch. Two teeth of upper jaw were uprooted; (iii) Bruise around neck which may have been caused by throttling ; (iv) Bruise over right chest size 3 inch x 3 inch & (v) Abrasion over left forearm size 2 inch x 2 inch. On internal examination, he noticed that blood clots were there on the membrane of right lung and it was ruptured. Other organs like liver, spleen and kidney were congested. He opined that the cause of death was asphyxia due to throttling and internal haemorrhage in the lungs and it was homicidal in nature. (4) In further investigation, spot maps were prepared under Ex.-P/2 & P/8. 2 Nos. of teeth & rubber slipper were seized under Ex.-P/10. Saree & blouse, sent from the hospital, were seized under Ex.-P/11. The cloths of the deceased were sent for their chemical examination to Forensic Science Laboratory, Raipur under Ex.-P/16, from where, a report Ex.-P/17 was obtained. According to the F.S.L. report, blood stains were found on those cloths. (5) After completion of usual investigation, the charge- sheet was filed in the Court of Chief Judicial Magistrate, Ambikapur, who in turn, committed the matter to the Sessions Court, Ambikapur, where the trial was conducted and the appellant/accused was convicted and sentenced as aforementioned. (6) Ms. Pushpa Dwivedi, learned counsel for the appellant, has not disputed the homicidal death of the deceased. She has also not disputed the involvement of the appellant in crime in question. She has only argued that the opinion of the Doctor that the cause of death was asphyxia due to throttling does not appear to be correct in view of the features found in the post-mortem report and the evidence of the mother of the deceased namely- Padwaien Bai (PW-3), who has witnessed the occurrence, and further in view of the fact that the incident took place at 6.00 p.m. on 2.11.2001 and the deceased was alright for the whole night as also till the evening of 3.11.2001 and she died at about 7.00 p.m. She submits that if the death was on account of throttling or strangulation by compression of the neck by hands, the deceased would have died instantaneously and many other post-mortem features would have been observed by the Doctor. She argued that, in fact, the deceased was beaten by the husband by hands, fist and chappel, who received some injuries and ultimately, she died after about more than 24 hours, therefore, the appellant would be liable for punishment under some lesser Section preferably Part-II of Section 304 IPC. (7) On the other hand, Mr. Ashish Shukla, learned Govt. Advocate, appearing on behalf of the State, opposed these arguments and supported the judgment and order passed by the Sessions Court. (8) We have heard the learned counsel for the parties at length and have also perused the records of the sessions case. (9) In case of strangulation, if the windpipe is compressed so suddenly as to occlude the passage of air altogether, the individual is rendered powerless to call for assistance, becomes insensible, and may die instantly. If the windpipe is not completely closed, the face becomes cyanosed, bleeding occurs from the mouth, nostrils and ears, the hands are clenched and convulsions precede delayed death. In such cases, the lungs are usually markedly congested, showing haemorrhagic patches and petechiae and exuding dark fluid blood on section. They may show emphysematous bullae on their surface due to over distension and rupture of the interalveolar septa. The bronchial tubes usually contain frothy, bloodstained mucus. To arrive at a conclusion that death was due to strangulation, it is necessary, therefore, to note the effects of violence in the underlying tissues in addition to the ligature mark or bruise marks caused by the fingers or by the foot, knee and other appearances of death from asphyxia. At the same time, the possibility of other causes of suboxic or asphyxial death should be excluded. This is what Modi observed in his Medical Jurisprudence and Toxicology, 23rd Edition, pp. 576, 580 & 581. (10) In case on hand, the Autopsy Surgeon, PW-5, has opined that the cause of death was asphyxia due to throttling and internal haemorrhage in the lungs. But, what was the real cause of haemorrhage or rupture of lung has not been determined by him. The Autopsy Surgeon has only said that there was a bruise around the neck which may have been caused by throttling but he has not done any investigation to find out the effects of violence in the underlying tissues in addition to the bruise marks caused by fingers around the neck. The Autopsy Surgeon has only said that there was a bruise around the neck which may have been caused by throttling but he has not done any investigation to find out the effects of violence in the underlying tissues in addition to the bruise marks caused by fingers around the neck. The Autopsy Surgeon has also not gone into investigate the other appearances of death by asphyxia and has given his such opinion regarding asphyxial death. (11) PW-3, Padwaien Bai, mother of the deceased, is an eye witness to the incident. She deposed in her examination-in- chief that the incident took place at about 6.00 p.m. when her son-in-law came to their house and assaulted the deceased by hands and fists and chappel. She deposed that along with the other injuries and uprooting of teeth, her daughter received injuries on the neck also. She has very specifically deposed that her daughter was talking throughout in the night and she died on the next day. This goes to show that the deceased was alive for about more than 24 hours and she was throughout talking with the mother. If, in fact, the cause of death would have been asphyxia due to strangulation or throttling, the mother of the deceased would have deposed that her son-in-law had pressed the neck of the deceased for throttling, and in all probability, the deceased would have been powerless, insensible and she would have died instantaneously. Apart from the above, there would have been some injury on the trachea and other internal portion of the neck. (12) In the present case, the eye witness account says that it was a case of beating by hands and fists which caused death after 24 hours, whereas medical opinion is pointing towards the death by throttling or strangulation. The Supreme Court held in the matters of State of U.P. -vs- Krishna Gopal and another, (1988) 4 SCC 302 and Ramakant Rai -vs- Madan Rai and others AIR 2004 S.C. 77 that "where the eye-witnesses'' account is found credible and trustworthy, medical opinion pointing to alternative possibilities is not accepted as conclusive. Importance and primacy should be given to the orality of the trial process. Importance and primacy should be given to the orality of the trial process. Eye witnesses' account would require a careful independent assessment and evaluation for their credibility which should not be adversely prejudged making any other evidence, including medical evidence, as the sole touchstone for the test of such credibility. 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 scale for a cumulative evaluation." (13) Sometimes, doctors also may not bestow sufficient care while performing examination or preparing records and their opinion may be based on inadequate or incomplete or defective examination or lack of complete knowledge. Doctor is a witness of both fact and opinion. Medical evidence acts as a check upon testimony of eye witness; it is also independent evidence in so far as it establishes facts e.g., tattooing marks, nature and dimensions of injury etc. Medical evidence is also corroborative of eye witness testimony, in as much as it may show that the injury might have been caused in the manner alleged. Defence could use the medical evidence to show that the injury could not have been caused as alleged and thereby discredit eye witness testimony. Court has to remember that medical evidence is mainly opinion evidence on which the court could form its own independent conclusion. However, in case of divergence, the Court must try to reconcile the two; if that is not possible the court has to appreciate the evidence like any other evidence, having regard to reasons and data provided by the Doctor and the cogency or otherwise of eye witness testimony. If eye witnesses are credible and trustworthy, medical opinion suggesting alternative possibility may not be accepted as conclusive and primacy should be given to oral evidence [Please see - 2007 CRI. L.J. 1036 (Atami Laxman V. State of Chhattisgarh)]. (14) Here credibility of the eye witness, PW-3, Padwaien Bai, is not in doubt. The entire case of the prosecution is based upon her sole testimony. L.J. 1036 (Atami Laxman V. State of Chhattisgarh)]. (14) Here credibility of the eye witness, PW-3, Padwaien Bai, is not in doubt. The entire case of the prosecution is based upon her sole testimony. Her testimony is corroborated by version of her son, PW-2, Manta Ram, who had also seen the deceased alive on 3.11.2001 and has lodged the First Information Report. This shows that the death was not instantaneous and the deceased died after 24 hours. In view of all this, in appreciation, we find that the opinion of Dr. I.D. Bhatnaagar (PW-5) that the cause of death was asphyxia due to throttling was not correct. It appears that the Doctor could not notice some internal injuries of ribs etc. which may have punctured the lungs and has simply suggested that the cause of death was asphyxia due to throttling. Therefore, we hold that, in fact, it was not a death on account of throttling or strangulation of the deceased by the appellant and the death was on account of injuries, including the injuries on lungs, sustained by the deceased. (15) Now we shall consider as to what offence the appellant, in fact, has committed. According to the mother of the deceased, the deceased was beaten by the appellant by hands and fists and a rubber slipper as the appellant came to their house un-arm. Even he did not pick up any weapon or article from the place of occurrence. This shows that the appellant was having no intention to kill his wife. Had there been any intention, the appellant would have come with some weapon or he would have used it at the moment. The death was also not instantaneous as the deceased died after more than 24 hours of the incident. It appears that some blow by hands and fists, proved fatal to the deceased causing injuries to her lungs which the appellant may not have intended to cause to the deceased. However, it can well be inferred that the appellant was having knowledge that his such act may cause death of the deceased or it may cause such bodily injury which may result into death of the deceased. In our considered opinion, the act of the appellant was culpable homicide not amounting to murder and would be punishable u/s 304 IPC. However, it can well be inferred that the appellant was having knowledge that his such act may cause death of the deceased or it may cause such bodily injury which may result into death of the deceased. In our considered opinion, the act of the appellant was culpable homicide not amounting to murder and would be punishable u/s 304 IPC. Since the intention appears to be lacking in this case, but the knowledge is writ large, therefore, the appellant would be liable for punishment under Part-II of Section 304 IPC. (16) Accordingly, the appeal is partly allowed. The conviction and sentence awarded to the appellant u/s 302 IPC are set aside. Instead, the appellant is convicted u/s 304 Part-II IPC and sentenced to undergo rigorous imprisonment for 10 years. The appellant is in jail. He shall be entitled to set-off the period already undergone by him.