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2010 DIGILAW 788 (HP)

State of H. P. v. Dina Nath

2010-05-04

RAJIV SHARMA, SURJIT SINGH

body2010
JUDGMENT (Rajiv Sharma, Judge) - A challenge has been laid by the State to the judgment of learned Additional Sessions Judge (2), Kangra at Dharmshala in Sessions Case No. 11-K/VII/96, dated 28.10.1997, whereby respondent Dina Nath, who was charged with and tried for offence, under Section 302 of the Indian Penal Code, has been acquitted. 2. The case of the prosecution, in a nut-shell, is that on 06.10.1995, at about 5:00 P.M., Bhundu Ram (now deceased), Mast Ram (PW-5) and Khemdi Ram (PW-6) after extracting Alsi oil, were returning home via Baldhar by road and at about 6:00 P.M., all of them sat for taking rest at a place known as Mahrian. In the meantime, accused Dina Nath, son of Bidhi Chand came there, who caught hold of Shri Bhundu Ram from both of his ears and after picking him up threw him forcibly on the ground, and started beating him with 'Hurron Mukkon' (fist blows). He was rescued by PW-5 Mast Ram. Bhundu Ram became unconscious. He reached home at 11:00 P.M. The same night he regained consciousness and told his son PW-4 Surjan Kumar that he was apprehending danger to his life from Dina Nath. He complained of various injuries on his body. He went to the Police Post Nagrota Bagwan to lodge a report with his son about the beatings given to him by the accused. He had given the details, the manner in which he had gone for the extraction of Alsi oil and when he was sitting with Mast Ram (PW-5) and Khemdi Ram (PW-6), he was given beatings by the accused. He was examined in Community Health Centre, Nagrota Bagwan on 07.10.1995. He was examined by Dr. V.P. Sharma (PW-1), who has issued the M.L.C. Ex. PW-1/B. Bhundu Ram died on 08.10.1995. The rukka was sent by Dr. V.P. Sharma to the In-charge of Police Post Nagrota Bagwan. The Police registered the F.I.R., under Section 302 of the Indian Penal Code. The inquest report was prepared and the post-mortem was conducted by PW-2 Dr. D.P. Swami. He issued post-mortem report Ext.-PW 2/D. The matter was investigated and the challan was put up after completing all the codal formalities, under Section 207 of the Code of Criminal Procedure. The accused was charged under Section 302 of the Indian Penal Code. 3. Prosecution has examined 11 witnesses. D.P. Swami. He issued post-mortem report Ext.-PW 2/D. The matter was investigated and the challan was put up after completing all the codal formalities, under Section 207 of the Code of Criminal Procedure. The accused was charged under Section 302 of the Indian Penal Code. 3. Prosecution has examined 11 witnesses. Accused was examined under Section 313 of the Code pf Criminal Procedure. He denied his involvement in the death of Bhundu Ram. He was acquitted by the learned trial Court. 4. Mr. Rajinder Dogra, learned Additional Advocate General has strenuously argued that the prosecution has proved its case against the respondent. 5. Mr. V.S. Rathore, learned counsel for the respondent has supported the judgment of the learned trial Court. 6. We have heard the learned counsel for the parties and gone through the record carefully. 7. Bhundu Ram (deceased) had made a statement, i.e., Ex. PW-9/A on 7th October, 1995 at about 10:15 A.M. He stated that on 6th October, 1995, he was taking rest at a place known as Mahrian with PW-5 Mast Ram and PW-6 Khemdi Ram. Accused Dina Nath, son of Bidhi Chand appeared on the spot and caught hold of him from his ears and after picking him up, threw him forcibly on the ground. He was given beatings with 'Hurron Mukkon' He was saved by PW-5 Mast Ram. He felt giddiness and thereafter became unconscious. He reached home at 11:00 P.M. He regained consciousness and told his son about the incident. He also told his son Surjan Kumar (PW -4) that he was apprehending danger to his life from the accused. Bhundu Ram died on 08.10.1995. A bare perusal of statement reveals that Bhundu Ram has mentioned the name of accused. He was admitted in Community Health Centre, Nagrota Bagwan on 08.10.1995. He was medically examined by PW-1 Dr. V.P. Sharma, after his admission in Community Health Centre, Nagrota Bagwan. He has not noticed any external injuries on the person of Bhundu Ram. According to him, his physiological parameters were normal and he was complaining of numbness over the hands and feet. Bhundu Ram was again examined after 24 hours and there was no deterioration in his general health. However, his general condition started deteriorating at 4:00 P.M. and he went into comma. He died at 4:20 P.M. on 08.10.1995. PW-1 issued M.L.C. Ex.-PW l/B. PW-2 Dr. Bhundu Ram was again examined after 24 hours and there was no deterioration in his general health. However, his general condition started deteriorating at 4:00 P.M. and he went into comma. He died at 4:20 P.M. on 08.10.1995. PW-1 issued M.L.C. Ex.-PW l/B. PW-2 Dr. D.P. Swami has conducted the postmortem on the body of Shri Bhundu Ram in Zonal Hospital, Dharamshala. He had noticed the following ante mortem Injuries: "1. Grazed abrasions No.3 on the left forearm, external side ½ X ½ cm, irregular, reddish. 2. Abrasion irregular, ½ X ½ cm, on the right hand external side mid-portion, reddish. 3. abrasion on right leg, lateral side, just below right knee joint, reddish. THORAX 1. Walls, ribs and cattilages : Fracture of left side 4th and 5th ribs at mid axillary line with clotted blood 100 cc in pleural cavity. Plearae : Left side damaged and tom off adjoining to above ribs fracture. 3. Larynx and traches, and Right Lung : NAD Left Lung: Lacerated wound on the left lower lobe 2X 2 cm irregular, with clotted blood, reddish, approximately 50 CC. ABDOMEN Walls : Rigid. Peritoeum : NAD, except cacity contains 600 cc of blood. Mouth, Larynx and Oespophagus: NAD Stomach and its contents : 200 CC, pare semi-digested food bo smell of alcohol, or poison, walls normal. Small intestines and their contents : -do- Lasrte intestines and their contents : Small quantity of 100 of fiscal matter and gasses. " According to his opinion, Bhundu Ram died of blood loss shock (Haemorrhagic) due to ante mortem injuries, caused by a blunt weapon. He has also noticed following injuries on the spleen : "Spleen : Reptured, 3 cm X 3 cm, on the front side inferior region, midportion. In surrounding 150 cc clotted blood reddish." According to PW-2, the injury to spleen alone was sufficient in ordinary course of nature to cause death. He has given the time between the injury and death 1 to 3 days and between death and post mortem 12 to 24 hours. On a suggestion made by the defence, he has stated in his cross-examination that rupture of spleen was not possible by slightest violence but in many cases, it is possible through slightest violence. He has given the time between the injury and death 1 to 3 days and between death and post mortem 12 to 24 hours. On a suggestion made by the defence, he has stated in his cross-examination that rupture of spleen was not possible by slightest violence but in many cases, it is possible through slightest violence. According to him, the rupture of spleen, in the present case, was not the result of slightest force in view of the size of the injury and the amount of blood which came out. He has not noticed any external injury over the spleen. He has also deposed that in rarest of rare case, the rupture of spleen occurs due to coughing sneezing contraction of abdominal muscles. He has denied that injuries to the ribs could be caused if a person of the age of Bhundu Ram is carried on the back for a considerable distance. 8. PW-4 Surjan Kumar is the son of deceased Bhundu Ram. He has stated that his father had gone to get the Alsi oil extracted at Nagrota Bagwan and he was brought home by Khemdi Ram, Mast Ram, Santosh Kumar and Parkash Chand. He was brought in an unconscious state to his house. He provided him oil massage. According to him, Bhundu Ram could not be carried to the hospital since it was too late at night and there was no conveyance available. He was taken by the Police Officials to Community Health Centre, Nagrota Bagwan for medical examination on 07.10.1995. He died in the hospital on 08.10.1995. In his cross-examination, he has admitted that the person who gave beatings to his father, was a stranger, but he lateron self stated that the accused had disclosed his name to Khemdi Ram, Mast Ram and his father. PW-5 is Shri Mast Ram, who was accompanying Bhundu Ram deceased. According to him, at 5:00 P.M., when they reached at a place known as 'Mari', one boy alongwith a girl was sitting under the edge of field. He had gone to urinate towards the field and seeing them sitting there, he came back without urinating. He told Bhundu Ram that a boy and a girl are sitting beneath the edge of a field. The boy and girl got up from the place and started moving towards village Sihund. He had gone to urinate towards the field and seeing them sitting there, he came back without urinating. He told Bhundu Ram that a boy and a girl are sitting beneath the edge of a field. The boy and girl got up from the place and started moving towards village Sihund. The girl was the daughter of one Shri Kishori Lal of his village. The boy came back and caught hold of him from his neck and collar of the shirt and gave him two fist blows and threw him on the hedge. He was saved by PW-6 Khemdi Ram. Thereafter, accused Dina Nath started giving fist and kick blows to deceased Bhundu Ram. Bhundu Ram became unconscious and fell down. The accused disclosed his name as Dina Nath. He ran away from the spot and thereafter, Parkash Chand (PW-8) and Santosh Kumar came on the spot. Bhundu Ram was lifted and taken to his house. In his cross-examination, he has admitted that accused Dina Nath was stranger to him prior to the occurrence. He did not know the name of the father of accused. He was confronted with his earlier statement, whereby he has mentioned that accused gave 'Hurron Mukkon' blows to Bhundu Ram. PW-6 is Shri Khemdi Ram, who was also accompanying deceased Bhundu Ram at the time of incident. He had also supported the version of PW-5 Mast Ram. He has testified that he picked up Mast Ram (PW-5) when he was pushed by accused and thereafter accused started grappling with Bhundu Ram. Accused threw Bhundu Ram on the ground. Thereafter, he ran away. He has denied in his cross-examination that he did not know the person who had quarrelled with Bhundu Ram. He did not know the name of the accused's father. 9. PW-8 is Shri Parkash Chand, who carried Bhundu Ram to his house. He was told by PW-5 Mast Ram and PW6 Khemdi Ram that Bhundu Ram was beaten up by Dina Nath. In his cross-examination, he has stated that he was also told by PW-5 and PW-6 that the accused was not a stranger and they knew his name. These are the material witnesses produced by the prosecution. 10. The learned trial Court has acquitted the accused primarily on two grounds. Firstly, the identity of accused was not known to the witnesses. Secondly, there was variance in the M.L.C. Ex. These are the material witnesses produced by the prosecution. 10. The learned trial Court has acquitted the accused primarily on two grounds. Firstly, the identity of accused was not known to the witnesses. Secondly, there was variance in the M.L.C. Ex. PW 1/B and post-mortem report Ex. PW 2/D. Shri Bhundu Ram has mentioned the name of accused in report Ex.- PW9/A. He has also stated in the report that he was apprehending threat to his life from Dina Nath. PW-5 Mast Ram and PW-6 Khemdi Ram have deposed, as noticed hereinabove, that they did not know the identity of Dina Nath at the time of incident. However, they had recognized the accused in the Court. It is settled principle of law under criminal jurisprudence that the identification for the first time in Court is permissible in law, however, the principle should be applied having regard to the facts and circumstances of the case. 11. Their Lordships of the Hon'ble Supreme Court in Hem Singh alias Hemu versus State of Haryana, (2009) 6 Supreme Court Cases 748 have held as under : "19. Mr. Rajeev Gaur 'Naseem' learned counsel appearing on behalf of the State would contend that identification for the first time in court is permissible in law. There cannot be any dispute so far as the aforementioned proposition of law is concerned. The said principle, however, should be applied having regard to the facts and circumstances of each case. Courts, as is well known, ordinarily, do not give much credence to identification made in the court for the first time and that too after a long time. 20. In Mahabir v. The State of Delhi [ 2008 (6) SCALE 52 ], this Court held: "10. As was observed by this Court in Matru v. State of U.P. (1971) 2 SCC 75 identification tests do not constitute substantive evidence. They are primarily meant for the purpose of helping the investigating agency with an assurance that their progress with the investigation into the offence is proceeding on the right lines. The identification can only be used as corroborative of the statement in court. (See Santokh Singh v. Izhar Hussain (1973) 2 SCC 406 ). The necessity for holding an identification parade. can arise only when the accused are not previously known to the witnesses. The identification can only be used as corroborative of the statement in court. (See Santokh Singh v. Izhar Hussain (1973) 2 SCC 406 ). The necessity for holding an identification parade. can arise only when the accused are not previously known to the witnesses. The whole idea of a test identification parade is that witnesses who claim to have seen the culprits at the time of occurrence are to identify them from the midst of other persons without any aid or any other source. The test is done to check upon their veracity. In other words, the main object of holding an identification parade, during the investigation stage, is to test the memory of the witnesses based upon first impression and also to enable the prosecution to decide whether all or any of them could be cited as eyewitnesses of the crime. The identification proceedings are in the nature of tests and significantly, therefore, there is no provision for it in the Code and the Indian Evidence Act, 1872 (in short the 'Evidence Act'). It is desirable that a test identification parade should be conducted as soon as possible after the arrest of the accused. This becomes necessary to eliminate the possibility of the accused being shown to the witnesses prior to the test identification parade. This is a very common plea of the accused and, therefore, the prosecution has to be cautious to ensure that there is no scope for making such allegation. If, however, circumstances are beyond control and there is some delay, it cannot be said to be fatal to the prosecution." 11. It is trite to say that the substantive evidence is the evidence of identification in Court. Apart from the clear provisions of Section 9 of the Evidence Act, the position in law is well settled by a catena of decisions of this Court. The facts, which establish the identity of the accused persons, are relevant under Section 9 of the Evidence Act. As a general rule, the substantive evidence of a witness is the statement made in Court. The evidence of mere identification of the accused person at the trial for the first time is from its very nature inherently of a weak character." (See also Amitsingh Bhikamsing Thakur vs. State of Maharashtra) 12. In the instant case, Bhundu Ram (deceased) has given the name of accused in Ex. The evidence of mere identification of the accused person at the trial for the first time is from its very nature inherently of a weak character." (See also Amitsingh Bhikamsing Thakur vs. State of Maharashtra) 12. In the instant case, Bhundu Ram (deceased) has given the name of accused in Ex. PW-9/A which is relevant as dying declaration under section 32 of the Evidence Act. It stands corroborated by the statements of PW-5 Mast Ram and PW-6 Khemdi Ram. They have given the natural sequences of the incident, what happened on 06.10.1995, when accused gave beatings to Bhundu Ram. There statements are to the effect that when they were sitting with Bhundu Ram at Mahrian, accused manhandled Mast Ram (PW-5), who was saved by PW-6 Khemdi Ram and thereafter, Bhundu Ram was given beatings by accused. Bhundu Ram was taken to his house by PW-5 Mast Ram, PW-6 Khemdi Rain and PW-8 Parkash Chand. Bhundu Ram received injuries on 06.10.1995. He was carried to his house in an unconscious state late at night. He was given oil massage by PW-4 Surjan Kunar. He was taken to Community Health Centre on 07.10.1995 and thereafter, he was admitted on 08.10.1995. He died on 08.10.1995 at 4:20 P.M. Bhundu Ram has given the name of the accused as Dina Nath. Since the accused was identified by Bhundu Ram, no identification parade was required to be held, as observed by the learned trial Court. 13. Bhundu Ram was medically examined by PW-1 Dr. V.P. Sharma, who has issued M.L.C. Ex. PW 1/B. He has not noticed any external injuries on the person of Bhundu Ram. However, as noticed above, PW-2 Dr. D.P. Swami has noticed ante mortem injuries on the body of Bhundu Ram. According to PW-2, the injury to spleen alone was sufficient in ordinary course of nature to cause death. According to his opinion, Bhundu Ram died of blood loss shock (Haemorrhagic) dup- to ante mortem injuries, caused by a blunt weapon. According to PW-1, physiological parameters of Bhundu Ram were normal and at the time of his admission and after 24 hours there was no deterioration in his general health. He further deposed that the health of Bhundu Ram deteriorated around 4:00 P. M. and he died at 4:20 P.M. It pre-supposes that the deceased Bhundu Ram had serious injuries, but was not properly attended by PW- 1. He further deposed that the health of Bhundu Ram deteriorated around 4:00 P. M. and he died at 4:20 P.M. It pre-supposes that the deceased Bhundu Ram had serious injuries, but was not properly attended by PW- 1. He has not noted the time of giving medicines to Bhundu Ram on 07.10.1995. Dr. D.P. Swami (PW-2) has noted fracture on left side 4th and 5th ribs at mid axillary line with clotted blood 100 cc in pleural cavity. There was lacerated wound on the left lower lobe 2 X 2 cm. irregular with clotted blood, reddish, approximately 50 cc. The spleen was ruptured. Medical evidence, i.e., Ex.-PW 2/D, is fully corroborated by the statements of PW-5 Mast Ram and PW-6 Khemdi Ram. Thus, it can safely be presumed that these injuries were caused due to fist and kick blows administered by the accused on the body of Bhundu Ram. 14. The learned trial Court has given undue importance to the suggestion put by the prosecution to Dr. D.P. Swami about the size and weight of the spleen. However, the suggestion put to PW-2 was satisfactorily explained by him. He categorically testified that the rupture of the spleen was not the result of slightest force. In other words, greater force has been used. He has also deposed that there was no external injury on the abdomen because of yielding of skin and there was no external injury over the spleen. The learned trial Court has recorded perverse findings that the injury to spleen could be caused since Bhundu Ram was lifted on the back by Parkash Chand and Santosh Kumar and they climbed through stair-case and the path was un-even. The ribs of Bhundu Ram could not be fractured due to jumps and jerks. The fracture of ribs is caused only when the greater force is used. The ribs could not be fractured by carrying Bhundu Ram from the place of occurrence to his house. 15. As per the post-mortem report, there was fracture of left side 4th and 5th ribs at mid axillary line with clotted blood 100 cc in pleural cavity. According to Modi's Medical Jurisprudence & Toxicology Twenty-Second Edition, a normal spleen may sometimes be ruptured by the broken ends of a rib, which may be fractured by a severe kick or by a blow from a blunt weapon. According to Modi's Medical Jurisprudence & Toxicology Twenty-Second Edition, a normal spleen may sometimes be ruptured by the broken ends of a rib, which may be fractured by a severe kick or by a blow from a blunt weapon. He has further opined that there may be frequently more than one rupture from a single blow, and its substance may rupture leaving the thickened capsule intact. In such a case, death may be delayed for some days, as the capsule limits the rupture or prevents excessive bleeding, and the small quantity of blood, which has already effused under capsule forms into a clot, and presses on the rupture and prevents further bleeding. In the present case, two ribs were fractured due to fist and kick blows given by the accused. 16. PW-1 Dr. V.P. Sharma should have been more cautious and diligent while examining the deceased. The deceased has received injuries on 06.10.1996 and was only admitted in the hospital on 08.10.1995. The delay in death, even after rupture of the spleen, could be due to the circumstances explained hereinabove in Modi's Medical Jurisprudence & Toxicology. Accordingly, the learned trial Court has not diligently gone through the contents of postmortem report and the statement of PW-2 Dr. D.P. Swami. The trial Court has come to the conclusion that since no injuries were noticed by PW-l Dr. V.P. Sharma when he examined Bhundu Ram, the same could not be recorded by PW-2 in post-mortem report Ex. PW 2/D. 17. Their Lordships of the Hon'ble Supreme Court in Mohan Singh and another versus State of M.P., (1999) 2 Supreme Court Cases 428 have held that mere variance of the prosecution story with the medical evidence, in all cases, should not lead to the conclusion, inevitably to reject the prosecution story and the efforts should be made to find the truth, this is the very object for which courts are created. Their Lordships have held as under : "11. The question is how to test the veracity of the prosecution story especially when- it is with some variance with the medical evidence. Mere variance of the prosecution story with the medical evidence, in all cases, should not lead to the conclusion, inevitably to reject the prosecution story. Efforts should be made to find the truth, this is the very object for which Courts are created. Mere variance of the prosecution story with the medical evidence, in all cases, should not lead to the conclusion, inevitably to reject the prosecution story. Efforts should be made to find the truth, this is the very object for which Courts are created. To search it out, the Courts have been removing chaff from the grain. It has to disperse the suspicious cloud and dust out the smear of dust as all these things clog the very truth. So long chaff, cloud and dust remains, the criminals are clothed with this protective layer to receive the benefit of doubt. So it is a solemn duty of the Courts, not to merely conclude and leave the case the moment suspicions are created. It is onerous duty of the Court, within permissible limit to find out the truth. It means, on one hand no innocent man should be punished but on the other hand to see no person committing an offence should get (go) scot-free. If in spite of such effort suspicion is not dissolved, it remains writ at large, benefit of doubt has to be credited to the accused. For this, one has to comprehend the totality of the facts and the circumstances as spelled out through the evidence, depending on the facts of each case by testing the credibility of eye-witnesses including the medical evidence, of course after excluding that (those) parts of the evidence which are vague and uncertain. There is no mathematical formula through which the truthfulness of a prosecution or a defence case could be concretised. It would depend on the evidence of each case including the manner of deposition and his demeans, clarity, corroboration of witnesses and overall, the conscience of a Judge evoked by the evidence on record. So Courts have to proceed further and make genuine efforts within judicial sphere to search out the truth and not stop at the threshold of creation of doubt to confer benefit of doubt. Under this sphere we proceed now to test the submission of the learned Counsel for the accused with reference to the blackening found by the doctor under the injuries in the post-mortem report." 18. Under this sphere we proceed now to test the submission of the learned Counsel for the accused with reference to the blackening found by the doctor under the injuries in the post-mortem report." 18. Their Lordships of the Hon'ble Supreme Court in Mahmood and another versus State of Uttar Pradesh (2007) 14 Supreme Court Cases 16 have held that medical evidence is only an evidence of opinion and it is not conclusive and when oral evidence is found to be inconsistent with the medical opinion, the question of relying upon one or the other would depend upon the facts and circumstances of each case, and ocular evidence if otherwise acceptable has to be given importance over medical opinion. However, where the medical evidence totally improbabilises the ocular version, the same can be taken to be a factor to affect credibility of the prosecution version. Their Lordships have held as under : "25. The post-mortem examination of the deceased Ram Singh was performed by Dr. R.S. Katiyar (PW-5). The post-mortem report is exhibit Ka-4. The Medical Officer found the following ante-mortem injuries on the person of the deceased : 1. A gun shot wound (wound of entry) 3 cm x 1 cm. Over left side of face just above the left side of the lower lip. Wound of Ext. 3 cm x 2 cm. Over the right parietal bone, 7 cm. Above the right ear. 2. A gun shot wound 2.5 cm x 1 cm. Over the right side of face below max, prominence. 3. Multiple gun shot wounds in an area of 13 cm x 11 cm. Over the right side of back below the inferior angle of scapula. 4. A gun shot wound (wound of entry) 2 cm x 2 cm over the right side of the back 2 cm. Right to 12th thoracic vertebra. 5. Multiple gun shot wounds in an area of 9 cm. X 4 cm. Over the back and middle of right arm. 26. Relying on his evidence the learned counsel for the appellant contended that the oral account as given by PW1, 2 and 3 is at variance with medical evidence available on record. It is contended that while according to the eyewitnesses all the four shots were fired from the gun, from right side of the victim, wound no. 26. Relying on his evidence the learned counsel for the appellant contended that the oral account as given by PW1, 2 and 3 is at variance with medical evidence available on record. It is contended that while according to the eyewitnesses all the four shots were fired from the gun, from right side of the victim, wound no. 1 (wound of entry) was on the left side of the face arid caused by bullet and this evidence belies the claim of eye witnesses that they saw the assault on Ram Singh. It is true that to a pointed query in cross-examination as regards the nature of injury no. 1, the Medical Officer stated that the said injury was caused by bullet only. The learned counsel contended that weapons in the hands of the accused even according to PW-1 were of 12 bore guns and not any pistols or revolvers. No bullet injury could have been caused with the firearms that were alleged to be in the hands of the assailants. We find no substance in this submission. The Medical Officer is not ballistic expert. He was not expected to answer as to whether injury no. 1 could have been caused by bullet alone. His opinion, to that extent is of no consequence. 27. It is well settled that medical evidence is only an evidence of opinion and it is not conclusive and when oral evidence is found to be inconsistent with the medical opinion, the question of relying upon one or the other would depend upon the facts and circumstances of each case. No hard and fast rule can be laid down therefor. The ocular evidence if otherwise is acceptable has to be given importance over medical opinion. However, where the medical evidence totally improbabilises the ocular version the same can be taken to be a factor to affect credibility of the prosecution version. We are not inclined to place any reliance upon the opinion of the Medical Officer that the injury no.1 could have been caused only with bullet since he is not a ballistic expert. This part of the evidence of the Medical Officer cannot be considered to be the opinion of an expert and the same has no evidentiary value. It is not possible to disbelieve the evidence of PW-1, 2 and 3 and their presence at the scene of occurrence based on the medical evidence. This part of the evidence of the Medical Officer cannot be considered to be the opinion of an expert and the same has no evidentiary value. It is not possible to disbelieve the evidence of PW-1, 2 and 3 and their presence at the scene of occurrence based on the medical evidence. The High Court rightly observed that the controversy as regards injury No.1 and whether the same could have been caused by bullet or pellet to be without any basis." 19. In a recent judgment, reported in AIR 2008 Supreme Court 533, titled as Kapildeo Mandal & Ors. versus State of Bihar, their Lordships of the Hon'ble Supreme Court have held that while appreciating variance between medical evidence and ocular evidence, oral evidence of eye-witnesses has to get primacy as medical evidence is basically opinionative. Their Lordships have held as under : "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 eyewitness has to get primacy as medical evidence is basically opinionative. [See Mange v. State of Haryana (1979) 4 SCC 349 (conviction based on sole testimony of eye-witness); State of U.P. 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 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 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 the present case, it is doubtful whether the injuries which are attributed to the appellant were caused by a gun or by a rifle. It is elementary that where the prosecution has a definite or positive case, it must prove the whole of that case. In 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 armed with a gun and, in his examination, it was definitely put 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 by a firearm being used at such a close range as is suggested in the evidence." In Mani Ram and Ors. v. State of U.P., 1994 Supp(2) SCC 289 (in para 9), this Court held : "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 the accused on the basis of such evidence. If the evidence of the prosecution witnesses is totally inconsistent with the medical evidence this is a most fundamental defect in the prosecution case 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: "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 assault, but the size and dimension of the injuries do not exactly tally with the size and dimension of the weapon. There is another category where though the injuries found on the victim are of the type which are possible by the weapon of 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 on that portion of the body where they are deposed to have been caused by the eyewitnesses. 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. 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 taken into consideration in judging the reliability of ocular testimony. 20. The learned trial Court has given undue importance to some delay which has been caused in lodging the F.I.R. Bhundu Ram was seriously injured and his son was looking after him. We have already noticed that PW-1 Dr. V.P. Sharma was casual in his approach in attending the deceased Bhundu Ram. The natural reaction of every prudent man is to lookafter the injured first and thereafter to lodge the report. 21. In view of the definitive law laid down by their Lordships of the Hon'ble Supreme Court, the statement of PW-l alongwith M.L.C. Ex.-PW-l/B is required to be discarded and the statement of PW-2 alongwith postmortem report Ex.-PW- 2/D, and ocular statements made by PW-5 and PW-6 are required to be believed. The findings recorded by the trial court are not supportable by evidence. 22. Respondent had the knowledge that deceased was old man of 65 years of age and the fist blows given by him on the vital organs, including spleen of his body, could prove fatal. In fact, the injuries inflicted on spleen proved fatal and he succumbed to injuries after three days of the receipt of the injuries. 22. Respondent had the knowledge that deceased was old man of 65 years of age and the fist blows given by him on the vital organs, including spleen of his body, could prove fatal. In fact, the injuries inflicted on spleen proved fatal and he succumbed to injuries after three days of the receipt of the injuries. Thus the act does not amount to murder, under section 302 of the Indian Penal Code on account of lack of requisite mens rea. But it does constitute offence of culpable homicide, not amounting to murder punishable, under section 304 (II) of the Indian Penal Code. For the foregoing reasons, appeal is accepted. The judgment of the trial Court acquitting the respondent, is set aside. He is held guilty of offence, under Section 304(II) of the Indian Penal Code and is convicted accordingly. He be produced on 21.05.2010 for being heard on the question of quantum of sentence. Non-bailable warrants of arrest be also issued.