JUDGMENT : Shree Chandrashekhar, J. The sole appellant has challenged the judgment of conviction under section 302 I.P.C and the order of sentence of R.I for life dated 07.02.2009 for the said offence passed against him in Sessions Trial No.58 of 2008. 2. The appellant is the next door neighbour of Kaplana Patro, the deceased. The prosecution has set-up a case against him that he has committed murder of Kalpana Patro by throttling her neck. 3. Dr. Lalan Choudhary-P.W 2 who has conducted the post-mortem examination has found the following injuries on Kalpana Patro: A. Bruise: (1) 6 c.m. x 6 c.m over right forehead, (2) 4 c.m. x 3 c.m. over left mendibular, B. Abraison: (1) Nail head several in number over an area of 5 c.m. x 3 c.m. over left side of neck. (2) 2 c.m. x 2 c.m. over left side under surface of chin. C. On dissection : Frontal skull contused 6 c.m. x 6 c.m., 3 c.m. x 2 c.m, 1 c.m. x 1 c.m. and 1 c.m. x 1 c.m. whole brain contused. Lungs congested and frothy, Viscera congested, Blader empty, uterus enlarged and on section tumor comes out (fibrides). Firm inconsistency. Stomach contain undigested food rice and pulses 350 gm. Uppermost part of both sides of neck contused. Posterior part of larynx and trachea contused. Larynx and trachea mucosa mildly congested and contain whitish froath. 4. During the trial the prosecution has examined six witnesses; Sushila Bag-P.W 1 is the aunt of the appellant. Two neighbours, namely, Ramesh Gope-P.W 3 and Pintu Ratan Patro-P.W 5 were examined by the prosecution as eye-witnesses. The informant, namely, Dhiren Nath Patro-P.W 4 is husband of the deceased. 5. Mr. Hadish Ansari, the learned Amicus submits that: (i) conduct of the eye-witnesses is highly suspicious, (ii) the prosecution witnesses have not spoken about assault by the appellant upon Kalpana Patro, however, the medical evidence would disclose several injuries on her, and (iii) the investigating officer has failed to collect the material informations about the occurrence, and, therefore, a reasonable doubt on complicity of the appellant has arisen. 6. On the basis of the fard-beyan of Dhiren Nath Patro-P.W 4, the husband of the deceased, which was recorded on 21.09.2007 at about 12:00 hrs. at M.G.M. Hospital, Jamshedpur, Sonari P.S Case No.86 of 2007 was registered under section 302 I.P.C against the appellant. 6. On the basis of the fard-beyan of Dhiren Nath Patro-P.W 4, the husband of the deceased, which was recorded on 21.09.2007 at about 12:00 hrs. at M.G.M. Hospital, Jamshedpur, Sonari P.S Case No.86 of 2007 was registered under section 302 I.P.C against the appellant. In his fard-beyan the informant has stated that in the morning of 21.09.2007 his wife was cooking food. At that time the appellant, who is his neighbour, came and sat there watching television. At about 8:00 a.m. his son went for his work and he also left the house. Suddenly, he heard the sound of bolting the door of his house from inside and cries of his wife. He saw that the appellant had put down his wife on the ground and he was pressing her neck. On his raising hullah, the mother of Diwakar Bag and others came there. His wife was shifted to M.G.M. Hospital where she was declared dead. The informant has been examined in the court as P.W 4. In his examination-in-chief, he has narrated a similar story about the occurrence. He has deposed that in the morning of fateful day the appellant came to his house, sat there by the side of his wife who was cooking meal and started watching television. The informant has further stated that immediately after he came out of his house he heard the cries of his wife and then he saw the appellant throttling the neck of his wife. The other prosecution witnesses – P.W 1 and P.W 3 – have also deposed in the court that when they heard cries of the wife of the informant they saw from the window of his house that the appellant was pressing the neck of Kaplana Patro. 7. The prosecution witness, namely, Sushila Bag-P.W 1 has stated that several villagers had assembled there, the door of the informant's house was broken open and the appellant was caught by them, however, somehow he fled away. The investigating officer-P.W 6 has admitted during the cross-examination that he did not make enquiries whether there was enmity between the informant and the appellant. He has said that he did not find any broken article at the place of occurrence and when he visited the place of occurrence he has found the door of the room which is the place of occurrence open. 8. He has said that he did not find any broken article at the place of occurrence and when he visited the place of occurrence he has found the door of the room which is the place of occurrence open. 8. Generally, ocular evidence is given precedence over the medical evidence. The medical evidence rendered by a doctor is an opinion and that is the reason if the eye-witness account of the occurrence is found cogent and consistent, minor discrepancy in the ocular evidence and the medical evidence would not make the prosecution's case doubtful and on the basis of the ocular evidence conviction of an accused can be recorded. However, there are certain circumstances in which in the face of the medical evidence the ocular evidence is discarded; one of such circumstances is where the medical evidence completely belies the manner of occurrence as projected by the prosecution. In “Mohinder Singh vs. The State” reported in AIR 1953 SC 415 , the Supreme Court has observed that it is elementary that where the prosecution has a definite or positive case, it must prove the whole of its case. It has been held that the testimony of an eye-witness gets primacy over the medical evidence which is basically opinionative, but where the court finds such inconsistencies between the ocular evidence and the medical evidence which cannot be reconciled evidence of an eye-witness is appreciated by the courts in a different prospective. In “Thaman Kumar v. State (UT of Chandigarh)” reported in (2003) 6 SCC 380 , the Supreme Court has observed as under: “16. 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. 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 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 categories no such inference can straight away 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.” 9. The case set-up by the prosecution against the appellant is that the appellant after the son and the husband of Kalpana Patro left home thrown her on the ground, sat on her chest and started pressing her neck to kill her on account of which she has died. All the prosecution witnesses have stated that they have seen the appellant pressing the neck of Kaplana Patro. The informant has said that immediately after he left home he heard cries of his wife. On such facts, it can be safely inferred that the occurrence has taken place within a very short span of time. No crime weapon has been recovered from the place of occurrence and, in fact, it is not the prosecution's case that the appellant has assaulted Kalpana Patro with any weapon. However, the doctor has found as many as three injuries of the extent of 6 c.m x 6 c.m., 4 c.m x 3 c.m and 2 c.m x 2 c.m, on Kalpana Patro. Her frontal skull was found contused and injuries of the dimension of 6 c.m x 6 c.m, 3 c.m. x 2 c.m. and 1 c.m. x 1 c.m. have been detected there by the doctor. He has also found her lungs congested and frothy, viscera congested and the stomach contained undigested 350 gms. of rice and pulse. Her frontal skull was found contused and injuries of the dimension of 6 c.m x 6 c.m, 3 c.m. x 2 c.m. and 1 c.m. x 1 c.m. have been detected there by the doctor. He has also found her lungs congested and frothy, viscera congested and the stomach contained undigested 350 gms. of rice and pulse. Though the doctor has rendered an opinion that the cause of death was due to pressure over neck (throttling), he has also stated that in ordinary course of nature head injury is sufficient to cause death. He has also stated that injuries found on Kaplana Patro were caused by hard and blunt substance. There was no other injury except the nail-head marks on the left side of the neck of the deceased which would have indicated the reason for the head injuries on Kalpana Patro. 10. From the aforesaid evidences led by the prosecution on death of Kalpana Patro, we find that the manner of occurrence as described by the prosecution witnesses has become doubtful. Inconsistency in the ocular evidence and the medical evidence creates a serious doubt on the complicity of the appellant in the crime. The investigating officer has failed to collect the material information’s regarding the crime and nowhere in their testimony the prosecution witnesses have spoken about motive on the part of the appellant. 11. In the aforesaid state of affairs, we are of the opinion that the appellant is entitled for the benefit of doubt. The prosecution has failed to establish that the appellant has committed murder of Kaplana Patro. Accordingly, the judgment of conviction dated 05.02.2009 and the order of sentence of R.I for life under section 302 I.P.C dated 07.02.2009 passed against the appellant, namely, Diwakar Bag in Sessions Trial No.58 of 2008 are set-aside. 12. Mr. Vinay Kumar Tiwari, the learned A.P.P states that the appellant is in custody. 13. Therefore, the appellant, namely, Diwakar Bag shall be released forthwith, if not required in connection to any other criminal case. 14. In the result, Criminal Appeal (D.B) No.351 of 2009 is allowed. 15. We appreciate the efforts of Mr. Hadish Ansari, the learned Amicus. 16. The Secretary, Jharkhand High Court Legal Services Committee shall reimburse the learned Amicus as per Notification dated 23.11.2017. 17. Let a copy of the judgment be transmitted to the court concerned through 'Fax'. 18. 14. In the result, Criminal Appeal (D.B) No.351 of 2009 is allowed. 15. We appreciate the efforts of Mr. Hadish Ansari, the learned Amicus. 16. The Secretary, Jharkhand High Court Legal Services Committee shall reimburse the learned Amicus as per Notification dated 23.11.2017. 17. Let a copy of the judgment be transmitted to the court concerned through 'Fax'. 18. Let lower-court records be sent to the court concerned forthwith.