LexKHAMBAM RAJA REDDY AND ANR. versus PUBLIC PROSECUTOR, HIGH COURT OF ANDHRA PRADESH
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A B KHAMBAM RAJA REDDY AND ANR 1i PUBLIC PROSECUTOR, HIGH COURT OF ANDHRA PRADESH SEPTEMBER 21, 2006 [A.K. MATHUR AND AL TAMAS KABlR,JJ.] Criminal trial-Medical evidence not borne out by ocular evidence- Conviction of accused based on ocular evidence--Correctness of-Held- C Court has discretion to reject ocular evidence it is not possible to relate injuries with circumstances in which they were said to have been inflicted- On facts, held in absence of an}' depressed injury and bleeding fi"om the nose and ears of deceased, evidence of prosecution witness that heavy stone dropped on deceased's head causing his death could not be given credence- It was highly improbable since defence of accused that he could not have D done so as he was crippled by polio was supported by a certificate of Civil Surgeon. The appellant was prosecuted with other accused for causing the death of deceased. According to PW-1, on the night of occurrence, while she was sleeping with her husband she woke up on hearing noise and in the beam of E her torch light saw appellant. According to her, while some of the accused caught hold of her hands and gagged her, the other accused exhorted appellant to kill the deceased who was still in a sound sleep. On such exhortation, appellant picked up a big stone and threw it on the head of the deceased, as a result whereof, he sustained fatal injuries on his head and died F instantaneously. On her complaint, a case was registered under Section 302 read with Section 34 IPC. The doctor who conducted the post mortem (PW-3) was of the opinion that the deceased had died on account of the head injuries. Appellant contended that he had been crippled by polio and in support thereof produced a certificate issued by Civil Assistant Surgeonj. On this basis he contended that it was impossible for him to lift a stone weighing about 25 to G 30 Kgs. and to throw it down on the head of the deceased. H Trial Court accepted the defence of appellant. It also observed that it was improbable for two old people to overpower a young woman, PW-I, and immobilize her so that the appellant could pick up and throw the heavy stone 446 KHAMBAM RAJA REDD\'>. PUBLIC PROSECUTOR, HIGH COURT OF ANDHRA PRADESH 44 7 at the head of the deceased. On this basis, it acquitted all the accused. A High Court allowed the appeal of the State holding that (i) there was no positive evidence to show that the appellant was a crippled man (ii) polio attack was always to the legs and not to the hands and appellant was strong enough to lift the stone weighing about 25 to 30 Kgs. 311d throw it at the head of the deceased (iii) evidence of PW-1 inspired confidence (iv) offence committed by B the accused persons, though homicide, did not amount to murder and had possibly been committed with the intention of causing grievous hurt to the deceased, and accordingly, the accused were guilty of offence under Section 326 IPC read with Section 34 IPC. Hence the present appeal. Appellants contended that PW-1 had admitted that she had not seen any C blood oozing from the ear, nose or mouth of the deceased after the commission of the offence. Allowing the appeal, the Court HELD: 1 Both the courts below overlooked the nature of the injuries D suffered by the deceased and to co-relate the same with the prosecution story. (453-D( 2.1. The present case is an example of contradiction between the ocular evidence and the medical evidence, where the medical evidence is not borne out by the ocular evidence. (454-A, Bl E 2.2. On an examination of the injuries suffered by the deceased and the evidence of PW-I, it will be seen that the injuries do not match the ocular evidence. The injuries suffered by the deceased do not indicate any depressed injury which would have to be present if a heavy object such as a stone weighing about 25 to 30 Kgs. were to be dropped on a person's head. PW-3 F state that there was profuse bleeding internally but that he did not find any profuse bleeding in the external injury and that there was possibility of blood oozing from the nose and the mouth if attacked with an object such as Material Object No.I. However, while examining the deceased, he did not observe oozing of blood either from the mouth or nose. In his cross-examination, PW-3 also observed that in case a heavy object touches a particular part of the body, there G will be depressed wound or injury. The injuries as noticed by him/h
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