KAPILDEO MANDAL AND ORS. versus STATE OF BIHAR

Citation: [2007] 12 S.C.R. 668 · Decided: 29-11-2007 · Supreme Court of India · Bench: P.P. NAOLEKAR · Disposal: Appeal(s) allowed

Judgment (excerpt)

A 
KAPILDEO MANDAL AND ORS. 
v. 
STA TE OF BIHAR 
NOVEMBER 29, 2007 
B 
[P.P. NAOLEKAR AND D.K. JAIN, JJ.) 
Penal Code, 1860: 
c 
ss.3021149, 4521148-Conviction under-Based on evidence of 
eye-witnesses that accused persons entered house of deceased andfired 
at him resulting in his death, assaulted informant with pistol on head 
and another with lathi-Challenge against-Held: Medical evidence 
completely ruled out prosecution version that injuries were caused by 
firearms-No pellet/bullet recovered from place of incident or from 
'( 
D body of deceased--Incident took place at night-Witnesses stated that 
they recognised accused persons in torch-light/lantern-light-However, 
neither torch nor lantern seized by I. 0. during investigation nor 
produced before court-Also, there was previous enmity between 
E parties-Eye-witnesses related to deceased-Thus, prosecution case 
full of doubts-Accused persons entitled to benefit of doubt. 
Evidence: 
Medical evidence-Primacy of, over ocular evidence-When 
F given-Held: In the event of variance between medical evidence and 
ocular evidence, ocular evidence to get primacy but when court find~ 
ocular evidence totally inconsistent to that given by medical experts, 
then medical evidence would assume importance and have priority 
over ocular version and can be used to repel testimony of eye-witnesses 
G 
as it goes to the root of matter. 
Related witness-Testimony of-Evidentiary value of 
' 
...-
Prosecution case was that there was animosity between the 
families of PW-9 and A-2. On the fateful night, accused persons A-
H 
668 
• 
KAPILDEOMANDAL v. STATE 
669 
1 to A-5 and 5-6 other persons entered the house of deceased. A-1, A 
A-2 and A-5 were carrying pistols. A-3 was carrying gun and other 
persons were carrying swords and lathis. A-2 fired at deceased which 
resulted in his death. A-1 fired at PW-9 informant on exhortation of 
A-3. One of miscreants sprinkled kerosene on PW-6 and searched 
~ 
for a match box to set fire on his body. PW-5 was assaulted with a B 
lathi. While leaving, the miscreants took away some articles from 
·.! 
the house. 
The Sessions Judge convicted all the accused persons under 
s.302 read with s.149 and under ss.452 and 148 IPC. A-1 and A-4 
were further convicted under s.323 IPC. Appeals filed by accused 
persons before the High Court were dismissed. Hence these 
appeals. 
Allowing the appeals, the Court 
HELD: 1.1. While appreciating the evidence of the witnesses 
related to the deceased, having strained relations with the accused 
party, their evidence cannot be discarded solely on that basis, but 
c 
D 
the court is required to carefully scrutinize it and find out if there is 
scope for taking the view that it is a case of false implication. The 
credibility of a witness cannot be judged merely on the basis of his E 
close relation with the deceased and, as such, cannot be a ground 
to discard his testimony, if it otherwise inspires confidence and, 
particularly so, when it is corroborated by the evidence of 
independent and injured witnesses. [Para 8] [677-A, BJ 
1.2. From ~he evidence of the witnesses examined by the 
prosecution, it is clear that there was animosity between the side of 
F 
the complainant and the accused persons. There was a litigation 
between the parties and they did not have good relations. The 
witnesses PW-5, PW-6, PW-7 (wife of the informant) and the G 
informant PW-9, were closely related to the deceased. At the same 
time, their presence in the house where the incident took place at 
night cannot be doubted. Other witnesses who were examined by 
the prosecution had reached the spot after the incident had already 
H 
670 
SUPREME COURT REPORTS 
[2007] 12 S.C.R. 
A taken place and they were not the eye-witnesses to the incident. 
[Para 8) (676-F, G) 
Masalti and Ors. v. The State ofUttar Pradesh, AIR(1965) SC 
202; Nallabothu Venkaiah v. State of A.P., (2002) 7 SCC 117; 
B Ramanand Yadav v. Prabhunath Iha and Ors., (2003) 12 SCC 606 
and State of Himachal Pradesh v. Mast Ram, AIR (2004) SC 5056, 
relied on. 
1.3. The witnesses were related and their relations were strained 
with the appellants on account of the litigation. The incident 
c happened at 11.00 o'clockin the night. The witnesses stated thatthey 
have seen the incident and recognised the appellants either in the 
torch-light or in the lantern-light which was burning at their house. 
Neither the torch nor the lantern was seized by the 1.0. during the 
course of 

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