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2015 DIGILAW 2198 (ALL)

BHOLA PAL v. STATE OF U. P.

2015-07-31

RAGHVENDRA KUMAR, SURENDRA VIKRAM SINGH RATHORE

body2015
JUDGMENT Hon’ble Surendra Vikram Singh Rathore, J.—Mr. G.S. Hazela, Advocate was heard in detail on behalf of appellant Bhola Pal and Mr. Indrajeet Yadav, learned A.GA. on behalf of the State. 2. Challenge in the instant appeal is the judgment and order dated 20.1.1988 passed by the Ist Additional Sessions Judge, Varanasi in Sessions Trial No. 401 of 1986 arising out of Case Crime No. 153 of 1986, Police Station Lanka, District Varanasi whereby appellant Bhola Pal was tried for the offence under Section 302 I.P.C. and by the impugned judgment, he was convicted for the said offence and was sentenced with imprisonment for life. 3. In brief the case of the prosecution was that complainant Vikrama Prasad, who happens to be the son of the deceased Jagarnath, lodged an F.I.R. on 9.6.1986 at 23:05 hours alleging therein that tender for Sunder Crossing Sabzi Mandi were invited by Nagar Mahapalika, Varanasi. On 22.5.1986 complainant alongwith his father Jagarnath, Sheetala Prasad and Lalji Verma visited Nagar Palika for submitting their tender. Appellant Bhola Pal alongwith Chhote Lal was also there for the same purpose. Accused Bhola Pal and Chhote Pal asked the complainant and his father not to submit their tenders but the father of the complainant refused to follow his command. Tender was submitted on behalf of the complainant. This annoyed accused Bhola Pal and he gave a threat that he will not permit the complainant to work and further threatened them with dire consequences. Tender of the complainant was accepted by Nagar Mahapalika and in pursuance thereof, the tender work at the site was started on 4.6.1986 and the work was going on the site of Sabji Mandi. Accused Bhola Pal also raised objection on this work. On 9.6.1986, complainant alongwith his father Jagarnath and Babu Ram was returning on cycle to his home from Sunderpur Crossing. At about 10:30 p.m., when these persons reached in the lane of Jain Temple, appellant Bhola Pal fired at Jagarnath and after receiving the said injury, Jagarnath fell down and died. Witness Chhedi Lal and Sheetala Prasad reached there and they have also witnessed the incident. The complainant prepared the report of this case on the site and went to lodge this F.I.R. at the police station Lanka. On the basis of which, case was registered and investigation proceeded. Witness Chhedi Lal and Sheetala Prasad reached there and they have also witnessed the incident. The complainant prepared the report of this case on the site and went to lodge this F.I.R. at the police station Lanka. On the basis of which, case was registered and investigation proceeded. Panchayatnama on the body of the deceased was conducted in the same night and thereafter the dead body alongwith the papers, prepared with the inquest report, was sent for post-mortem. Post-mortem on the dead body of the deceased was conducted on the next day i.e. 10.6.1986 at 3:00 p.m. by PW-5 Sri K.N. Srivastava and following injuries were found on his body : (i) Fire-arm wound of exit inverted, ecchymoised margin 3 c.m. x 2 c.m. on left side front of chest 4.5 c.m. below left axilla 13 c.m. below the shoulder top, 14 c.m. away from mid line corresponding to wound of entry on left side back, it is situated in the 3rd and 4th inter-costal space. (ii) Fire-arm wound of entry 1 c.m. x 0.5 c.m. inverted, ecchymoised margin, elliptical in shape 17 c.m. below left shoulder, 3.5 c.m. away from midline, it is between 8th and 9th ribs space (8 inter costal space) fracture of 9th rib present. Tattooing in area of 30 c.m. x 20 c.m. in back of chest and abdomen. On exploration, there is penetration of lower and upper lobe of left lung. Tattooing 1 c.m. x 1 c.m. on back of left side heart present clotted blood half ounce present. In the opinion of doctor, the deceased died due to shock and hemorrhage as a result of ante-mortem fire-arm injury. 4. Bloodstained and plain soil was taken from the place of occurrence and its memo was prepared. Place of incident was inspected and site plan was prepared. After completing the investigation, charge-sheet was filed against the appellant. 5. The case of the defence was of total denial and it was argued that there was no source of light and he has been falsely implicated due to enmity. 6. In order to prove its case, the prosecution has examined PW-1 Vikrama Prasad and PW-2 Babu Ram as witnesses of fact, who have supported the case of the prosecution. PW-3 Chhedi Lal, who was also a witness of fact, however, he has turned hostile and has not supported the case of the prosecution. 6. In order to prove its case, the prosecution has examined PW-1 Vikrama Prasad and PW-2 Babu Ram as witnesses of fact, who have supported the case of the prosecution. PW-3 Chhedi Lal, who was also a witness of fact, however, he has turned hostile and has not supported the case of the prosecution. PW-4 Constable Sachchida Nand Singh, who was the carrier of the dead body after the inquest proceedings. PW-5 Dr. K.N. Srivastava, who has conducted the post-mortem on the body of the deceased. PW-6 Head Constable Ram Adhin Singh, who has prepared the Chik report and G.D. of this case. PW-7 is S.O. Ram Adhar Yadav, who has investigated the case. 7. To negative the prosecution case regarding presence of light on the scene of occurrence in defence, DW-1 Sanjay Kumar has been examined, who is the son of Vasudeo Singh. He has stated that there was no light in his house towards the lane. DW-2 Surendra Srivastava is the Superintendent Nagar Mahapalika, who has stated that on 4.9.1986, several persons of village Nariya have sent an application informing thereby that in the Jain Lodge Lane, there is no light, due to which several offences have taken place there. DW-3 is Jani Pal, who was also a signatory to the application dated 4.9.1986 and has stated that he has never seen any mercury light on Jain Lodge. DW-4 Narendra Kumar Jain, who was the Secretary of Jain’s Lodge, who has stated that mercury light on the Jain Lodge was not functional for the last several years. 8. After appreciating the evidence on record, the trial Court has convicted the appellant as above, hence the instant crimial appeal. 9. Submission of learned counsel for the appellant was that in this case, the prosecution has come with a definite case that there was electricity light in the house of Vasudeo Singh and also mercury light on Jain’s Lodge but the defence evidence has clearly negatived this fact. So virtually there was no light in the lane where offence is alleged to have been committed and it is a case of hit and go. Therefore, there was no occasion for the witnesses to see the assailant committing the offence and the appellant has been falsely implicated in this case as an accused. 10. So virtually there was no light in the lane where offence is alleged to have been committed and it is a case of hit and go. Therefore, there was no occasion for the witnesses to see the assailant committing the offence and the appellant has been falsely implicated in this case as an accused. 10. The entire thrust of argument of learned counsel for the appellant was on the point that in the absence of light and keeping in view the manner in which the incident is alleged to have taken place, the witnesses had no occasion to witness the incident. 11. Learned A.G.A. has submitted that the Investigating Officer has shown two points; one ‘L’ at the house of Vasdeo and other ‘L’ at Jain Temple where the electricity light was present. There is no evidence that at the relevant time, there was no electricity supply. There was sufficient light at the place of occurrence for the witnesses to see the incident. Defence witnesses were not reliable. The application, as stated by the defence witnesses, was moved after about three months of the incident and it appears to be an application moved only to help the accused in his defence. 12. In the instant case, the incident is alleged to have taken place on 9.6.1986 at about 10:30 p.m. and F.I.R. of this case was lodged very promptly after only about 35 minutes of the occurrence at Police Station Lanka, which is situated at a distance of one kilometer. It has come in the evidence during trial that after the incident, the complainant stayed about 15 minutes at the place of occurrence and scribed the F.I.R. of this case. So in this case a very prompt F.I.R. has been lodged wherein appellant Bhola Pal was named as an accused. A prompt F.I.R. lends credence to the prosecution case because a prompt F.I.R. eliminates all the chances of cooking up of a false story. Hon’ble the Apex Court in the case of Meharaj Singh v. State of U.P., (1994) 5 SCC 188 , while emphasizing the importance of recording a prompt FIR the Supreme Court observed as under : “FIR in a criminal case and particularly in murder case is a vital and valuable piece of evidence for the purpose of appreciating evidence led at the trial. The object of insisting upon prompt lodging of the FIR is to obtain earliest information regarding the circumstance in which the crime was committed, including the names of the actual culprits and the parts played by them, the weapons, if any, used, as also the names of the eye-witnesses if any. Delay in lodging FIR often result in embellishment, which is a creature of an afterthought. On the account of delay, the FIR not only gets bereft of the advantage of spontaneity, danger also creeps in of the introduction of a coloured version of exaggerated story.” 13. In Thulia Kali v. State of Tamil Nadu, (1972) 3 SCC 393 , the Supreme Court observed as under : “............ First Information Report in a criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at the trial. The importance of the report can hardly be overestimated from the standpoint of the accused.” Similarly in Kishan Singh through LRs v. Gurpal Singh and others, (2010) 8 SCC 775 , the Supreme Court held that “Prompt and early reporting of the occurrence by the informant with vivid details gives assurance regarding truth of its version. In case there is some delay in recording the FIR the complainant must give an explanation for the same. Undoubtedly, delay in lodging FIR does not make the complainant’s case improbable when such delay is properly explained.” 14. Hon’ble the Apex Court in the case of Nanhe v. State of Uttar Pradesh, 1973 (3) SCC 317 , has held that a prompt F.I.R. eliminates the chances of cooking up of a false story. 15. In the instant case, the case of the prosecution has been challenged on the ground that prosecution has come with a definite allegation that the complainant side was threatened that they shall also face the same consequence, which was faced by the brother of the deceased namely Baijnath, who happens to be father of PW-2 Babu Ram. But during investigation, PW-2 Babu Ram, who is son of Baijnath has admitted in his cross-examination that at time of murder of his father he was very young. However, he has admitted that subsequently he came to know that his father was murdered by his real brother in law Basanta (husband of his sister). But during investigation, PW-2 Babu Ram, who is son of Baijnath has admitted in his cross-examination that at time of murder of his father he was very young. However, he has admitted that subsequently he came to know that his father was murdered by his real brother in law Basanta (husband of his sister). Submission of learned counsel for the appellant is that said Basanta was released from jail few days prior to this incident and he had threatened the father of the complainant to cause his death. But this is only a bald suggestion and there is no evidence in support of the same. Neither any report of any such threats extended by said Basanta nor any of his family members nor there is any evidence that said Basanta was released from jail few days prior to this incident. So it is only a bald suggestion and has no bearing in the facts of the instant case. 16. The motive as alleged by the prosecution was that the deceased also submitted tender for Sunder Crossing Sabzi Mandi. It is submitted that neither the appellant nor any of his family member has submitted any tender, so there was no question of any annoyance or grievance with the complainant side. It is true that it is not the case of the prosecution that the complainant or any of his family member submitted any tender for the same work. On the contrary the prosecution has come with a definite case that the appellant alongwith other persons had come to submit the tender and asked the complainant side not to file the tender. When his wish was declined by the complainant side then he went away after extending threats without submitting the tender. So simply because no tender was submitted by the appellant, it would not be of any help to him. 17. The main thrust of the learned counsel for the appellant was that it is a case of hit and go and there was virtually no light. It is true that in the F.I.R., it was not mentioned that there was any light. But it has come in the evidence that F.I.R. was scribed at the place of occurrence and thereafter the complainant went to lodge the same. It is true that in the F.I.R., it was not mentioned that there was any light. But it has come in the evidence that F.I.R. was scribed at the place of occurrence and thereafter the complainant went to lodge the same. During investigation, the Investigating Officer has inspected the place of occurrence and in the site plan, he has shown one light in the house of Vasudeo and other light in Jain’s Lodge. 18. Learned counsel for the appellant has submitted that four defence witnesses were examined but the trial Court without assigning any reason has lightly brushed aside their evidence. 19. Law is settled on the point that evidence of defence witness has to be considered in the same manner as the evidence of a prosecution witness and the evidence of a defence witness cannot be brushed aside without assigning any reason. Hon’ble Apex Court has considered as to what value should be given to a defence witness and in the case of Sanjiv Kumar v. State of Punjab, (2009) 16 SCC 487 , has held in para 23 as under : “It has been observed that defence witnesses are often untruthful, but that is not to say that in all cases defence witnesses must be held to be untruthful, merely because they support the case of the accused. The right given to the appellant to explain the incriminating circumstances appearing against him serves a purpose, and cannot be ignored outright. In every case the Court has to see whether the defence set up by the accused is probable, having regard to the totality of the facts and circumstances of the case. If the defence appears to be probable, the Court may accept such defence. This is primarily a matter of appreciation of evidence on record and no straitjacket formula can be enunciated in this regard.” In another case the Hon’ble Apex Court has held in the case of Banti alias Guddu v. State of M.P., (2004) 1 SCC 414 , has held in para 9 as under : “It is true, the evidence of the defence witness is not to be ignored by the Courts. Like any other witness, his evidence has to be tested on the touchstone of reliability, credibility and trustworthiness, particularly when he attempts to resile from and speak against records and in derogation of his earlier conduct and behaviour. Like any other witness, his evidence has to be tested on the touchstone of reliability, credibility and trustworthiness, particularly when he attempts to resile from and speak against records and in derogation of his earlier conduct and behaviour. If after doing so, the Court finds it to be untruthful, there is no legal bar in discarding it.” 20. This point has been considered by Hon’ble the Apex Court in the case of Munshi Prasad and others v. State of Bihar, (2002) 1 SCC 351 , has held in para 3 as under : “Before drawing the curtain on this score, however, we wish to clarify that the evidence tendered by the defence witnesses cannot always be termed to be a tainted one by reason of the factum of the witnesses being examined by the defence. The defence witnesses are entitled to equal respect and treatment as that of the prosecution. The issue of credibility any trustworthiness ought also to be attributed to the defence witnesses on a par with that of the prosecution—a lapse on the part of the defence witnesses cannot be differentiated and be treated differently than that of the prosecutors’ witnesses.” 21. Law is settled on the point that the prosecution is bound to prove its case beyond reasonable doubt but on the contrary if the accused comes with a definite defence, then he is only required to show that the defence version is probable. The accused is not required to prove his defence case beyond any reasonable doubt. The burden to prove his defence is not as high as that of the prosecution to prove its case. 22. In the facts of the instant case, though it is not the case of the defence that there was no electricity supply at the relevant time. The defence witness DW-1 Sanjay Kumar Singh, who happens to be the son of Vasudeo has stated that there was no bulb towards the western side of his house near the western boundary wall. He has also stated that he has never seen any mercury bulb giving light in the Jain Lodge. Jain Lodge is situated just on the opposite side to the house of this witness. He has also stated that he has never seen any mercury bulb giving light in the Jain Lodge. Jain Lodge is situated just on the opposite side to the house of this witness. DW-2 Surendra Singh has stated that on 4.9.1986 i.e. after about three months of the occurrence, some persons of Nariya Mohalla have moved an application that there was no light in the lane of Jain Lodge due to which several incident have taken place. This witness has also stated that on the said application, no action was taken. He has admitted in his cross-examination that his department is concerned with the street light and has no concern with the private light. DW-3 Janipal, who was one of the signatory of the said application, has also given evidence to the same effect. DW-4 Narendra Kumar Jain is the Secretary of the Jain Lodge and he has stated that mercury light fixed on Jain Lodge was not functional for the last several years. But the defence witnesses have admitted that there were 50 rooms in the Jain Lodge in which the persons used to live. There is no evidence or document from the side of the appellant that there was no electricity supply on the date of occurrence. The said Jain Lodge is situated on the west side of the lane. There is house of Vasudeo opposite to Jain Lodge. So even if there was no such light as shown by the Investigating Officer even then it cannot be presumed that persons living in the vicinity have not made any arrangement of the light in their houses. Apart from it, there was no dispute to the fact situation that appellant and witnesses were very well known to each other. When the light was sufficient for the appellant to recognize in dark and to aim his shot correctly then the same light would be sufficient for the witnesses to see the incident. Keeping in view the defence evidence the source of light as shown by Investigating Officer and stated by witness becomes unreliable. So there may be very little light which may be coming from the houses or rooms of the lodge. Whether the same was sufficient or not has to be ascertained by the evidence of the witnesses. Keeping in view the defence evidence the source of light as shown by Investigating Officer and stated by witness becomes unreliable. So there may be very little light which may be coming from the houses or rooms of the lodge. Whether the same was sufficient or not has to be ascertained by the evidence of the witnesses. The point of light has also been challenged on the ground that Investigating Officer after his arrival at the place of occurrence made arrangement of Petromax light and only thereafter he could proceed with the investigation. This conduct of the Investigating Officer also shows that there was no light at the time of incident. But perusal of the evidence of Investigating Officer reveals that the light was not sufficient for conducting investigation, inspecting place of occurrence and to conduct the investigation. For these purposes, sufficient light is required. It also supports the defence version that light was not sufficient. If the Investigating Officer has made arrangement of the petromax to proceed with the investigation in the night then it cannot be presumed by any stretch of imagination that it was pitch dark at the time of the incident. As stated earlier we would consider the sufficiency of light by scrutinizing the evidence of witnesses. 23. There is one very glaring aspect of this case that learned counsel for the appellant has not argued. But being the Court of first appeal, while appreciating the evidence, glaring medical inconsistency came to our notice. PW-1 Vikrma Prasad has stated in his evidence that at time of incident his father was about 10-12 paces ahead of him and when his father moved towards 8-9 paces in the lane, the incident occurred. PW-2 Babu Ram is the cousin and was about 6-7 paces ahead of the father of the complainant. The moment he turned in the lane then he saw that the appellant was standing at the gate of Jain Lodge and immediately he fired from there and ran towards him. The moment when the fire was shot at that time, the assailant was at a distance of 10-12 paces from him and he was on the northern end of the gate of Jain Lodge. He was standing at the gate at the relevant time and his father was only at a distance of 1-2 feet from him. After being hit his father made no noise. He was standing at the gate at the relevant time and his father was only at a distance of 1-2 feet from him. After being hit his father made no noise. PW-1 Vikrama Prasad has mentioned in the F.I.R. that he and PW-2 both chased the assailants while during trial he has given specific statement that assailant was chased only by him and not by PW-2 Babu Ram. When the attention of this witness was drawn towards his own F.I.R., then he could not reply as to how it was written in his F.I.R. The Court has recorded his demeanor and has observed that the witness could not reply and his demeanor shows that his statement is wrong. This witness has stated that the street is about 7 feet wide and it runs north to south. His father was on the western side of the lane. So far as the manner of assault is concerned, the evidence of Babu Ram is not very material because he has stated that he was ahead of the deceased. He heard the noise of the fire thereafter he got down from his cycle then he turned and saw that assailant was running. So the evidence of this witness so far as the manner of assault is concerned is not very material. PW-3 Chhedi Lal, who is also a witness of fact according to the version of F.I.R., has not supported the case of the prosecution during trial. Keeping in view the statement of PW-1 Vikrama Prasad at the time of firing by assailant, was on the left side of the deceased. Deceased was on his cycle and fire was shot from a distance of 1-2 feet. There is no allegation that before firing the assailant challenged the deceased. So keeping in view this factual position evidence of PW-5 assumes great importance. PW-5 Dr. K.N. Srivastava has stated that “ ;fn et:c lk;fdy ls tk jgk gks vkSj xksyh ekjus okyk mlds ckW;h rjQ mlds lkekukUrj gks (side by side) rks et:c dks mijksDr pksV ughsa vk ldrhA ”. Learned trial Court has not given any importance to this statement of the doctor only on the ground that it has come in the evidence that fire was shot from a close range. Learned trial Court has not given any importance to this statement of the doctor only on the ground that it has come in the evidence that fire was shot from a close range. The evidence of PW-1 Vikrma and site plan prepared by the Investigating Officer clearly indicates that at the time of firing the deceased was going on his cycle and the appellant was standing on the northern end of the gate of Jain Lodge. He was on the left side of the deceased, at the relevant time. He fired at the deceased from a distance of about two feet. But the seat of wound of entry shows that this would was 1 c.m. x 0.5 c.m. and was oval in shape, it was 17 c.m. below left shoulder and 3.5 c.m. away from the mid-line. Thus if a person shots a fire from the left of the victim, then fire would be oval in shape but in that case, the exit wound would be on the right side of the front of chest. But in the instant case, the exit wound was 14 c.m. away from mid line on left side front of chest. The doctor has also mentioned that the wound of entry was corresponding with the wound of exit. So it clearly establishes that at the time of firing the assailant was on the right side of the deceased and not on the left side. But the trial Court has not scrutinized the medical evidence in correct perspective. If a fire is shot in the manner as alleged by the prosecution then there was absolutely no occasion to cause such injury. The seat of injury also shows that wound of entry was 17 c.m. below left shoulder while the wound of exit was 13 c.m. only below left shoulder top, which shows that the direction of the wound was from downwards to upwards, that cannot be the position in case the incident has taken place in the manner as alleged by the prosecution. So in the instant case, the medical evidence is absolutely inconsistent with the ocular testimony and this aspect gives rise to the inference that the incident was not seen by the complainant and in only because of the enmity, the name of the appellant was dragged and he was made an accused in the instant case, or because of insufficiency of light witnesses could not see the incident. It will also support the defence case that assailant could not be recognize in such insufficient light. 24. At this juncture, we would like to discuss the law on the point as to what value should be attached to the medical evidence when the same is contrary to the ocular testimony of the witnesses. In the case of Umesh Singh v. State of Bihar, (2013) 4 SCC 360 , Hon’ble the Apex Court has occasioned to discuss the law on the aforesaid point. In the said judgment, Hon’ble the Apex Court has quoted the relevant part of its earlier judgment in the case of Abdul Sayeed v. State of Madhya Pradesh, (2010) 10 SCC 259 , the relevant paragraphs read as under : “33. In State of Haryana v. Bhagirath, AIR 1999 SC 2005 , it was held as follows: 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 doctor. Of course, due weight must be given to opinions given by persons who are experts in the particular subject. 34. 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 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 eye-witnesses’ account which had to be tested independently and not treated as the ‘variable’ keeping the medical evidence as the ‘constant’. 35. Where the eye-witnesses’ account is found credible and trustworthy, a medical opinion pointing to alternative possibilities cannot be accepted as conclusive. The eye-witnesses’ 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. 36. In Solanki Chimanbhia Ukabhai v. State of Gujarat, 1983 (2) SCC 174 , this Court observed: 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 eye-witnesses. 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 eye-witnesses, the testimony of the eye-witnesses cannot be thrown out on the ground of alleged inconsistency between it and the medical evidence. 39. 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 eye-witnesses, the testimony of the eye-witnesses cannot be thrown out on the ground of alleged inconsistency between it and the medical evidence. 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-a-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 added) 25. Keeping in view the aforesaid legal position regarding the discrepancy in the medical and ocular evidence, we are of the considered view that in the facts of this case, these discrepancies assume great importance because the defence has come with a definite case that there was no sufficient light so the chances that the incident could have been witnessed by the complainant and only because of the enmity, the complainant has named the appellant and has furnished a wrong description of the incident in the F.I.R. also and in his statement during trial. But as discussed earlier, the manner in which the complainant alleges that the injury was caused to his father stand completely ruled out or stand completely falsified by the medical evidence. The wound, which was found on the body of the deceased, travelled from right side to left side and the direction appears to be upwards. It was nowhere alleged by the prosecution that appellant before firing in the night from the back side challenged the deceased so there was no occasion for any movement of the deceased, who was going on his cycle. Apart from it, the doctor has also reported that injury No. 1 and 2 were corresponding to each other, which means that the bullets passed through and through and has not changed its route. This medical discrepancy in our opinion crates serious doubt and makes the defence version probable that there was insufficient light due to which the complainant could not see the incident and has lodged false report against the appellant. This medical discrepancy in our opinion crates serious doubt and makes the defence version probable that there was insufficient light due to which the complainant could not see the incident and has lodged false report against the appellant. 26. In view of the discussion made above, the appellant becomes entitled for benefit of doubt. 27. In view of the discussion made above, this appeal deserves to be allowed and is hereby allowed. Accordingly conviction of the appellant under Section 302 I.P.C. and sentence awarded by the trial Court is hereby set aside. He is acquitted of the charge levelled against him. He be set at liberty. The appellant is on bail. His bail is cancelled and sureties are discharged. 28. Office is directed to communicate this order to the Court concerned to ensure compliance forthwith and lower Court record be also sent back. ———————