Whether accused can be acquitted relying on hypothetical answers of medical witness pointing to alternative possibilities?
IN THE HIGH COURT OF CALCUTTA
C.R.A. 190 of 2006
Decided On: 30.09.2015
Appellants: Bonomali Mondal and Ors.
Vs.
Respondent: The State of West Bengal
Vs.
Respondent: The State of West Bengal
Hon'ble Judges/Coram:Nadira Patherya and Asha Arora, JJ.
Criminal - Conviction - Appreciation of evidence - Sections 34 and 304 Part II of Indian Penal Code, 1860 - Appellants were convicted for offence punishable under Section 304 Part II of Code read with Section 34 of Code - Hence, present appeal - Whether conviction of Appellants was valid - Held, eye witnesses accounted were found credible and trustworthy - Hypothetical answers of medical witnesses pointing to alternative possibilities could not be accepted as conclusive - Failure to produce seized weapon of offence did not affect credibility of prosecution - Defect in investigation could not be ground for acquittal of Appellants - Prosecution was successful in proving guilt of Appellants beyond reasonable doubt - Therefore, conviction of Appellants was valid.
Learned Counsel for the appellants argued that there is conflict between the ocular and medical evidence on the point of time of the incident. In this context our attention has been drawn to the cross-examination of P.W 13 Dr. K.K. Mazumder who stated therein that he found undigested food in the stomach so it can be said that the deceased sustained injury within 3 hours of his taking meal. Reference has also been made to the evidence of P.W 15 Dr. Amal Kumar Moitra who first attended the victim. Being quizzed in cross-examination this Medical Officer stated that the age of the injury was within four hours. The contention raised at the Bar that in view of the medical evidence on record the time of incident as stated by P.W 1, P.W 3, P.W 4 and P.W 10 belies the prosecution case is wholly devoid of merit. The reason is not far to seek. It is a well settled proposition of law that the evidence of eye witnesses will prevail in case of inconsistency between medical and ocular evidence. The value of medical evidence is only corroborative. The fact that undigested food was found in the stomach of deceased cannot determine the time of incident. The time taken normally for digesting food would depend upon the quality and quantity of food, atmospheric condition, the digestive capacity of a person and various other factors. Therefore merely on this score the evidence of the ocular witnesses cannot be disbelieved. It is trite law that where the eye witnesses account is found credible and trustworthy, hypothetical answers of medical witnesses or medical opinion pointing to alternative possibilities cannot be accepted as conclusive.
Learned Counsel for the appellants argued that there is conflict between the ocular and medical evidence on the point of time of the incident. In this context our attention has been drawn to the cross-examination of P.W 13 Dr. K.K. Mazumder who stated therein that he found undigested food in the stomach so it can be said that the deceased sustained injury within 3 hours of his taking meal. Reference has also been made to the evidence of P.W 15 Dr. Amal Kumar Moitra who first attended the victim. Being quizzed in cross-examination this Medical Officer stated that the age of the injury was within four hours. The contention raised at the Bar that in view of the medical evidence on record the time of incident as stated by P.W 1, P.W 3, P.W 4 and P.W 10 belies the prosecution case is wholly devoid of merit. The reason is not far to seek. It is a well settled proposition of law that the evidence of eye witnesses will prevail in case of inconsistency between medical and ocular evidence. The value of medical evidence is only corroborative. The fact that undigested food was found in the stomach of deceased cannot determine the time of incident. The time taken normally for digesting food would depend upon the quality and quantity of food, atmospheric condition, the digestive capacity of a person and various other factors. Therefore merely on this score the evidence of the ocular witnesses cannot be disbelieved. It is trite law that where the eye witnesses account is found credible and trustworthy, hypothetical answers of medical witnesses or medical opinion pointing to alternative possibilities cannot be accepted as conclusive.
Asha Arora, J.
https://www.lawweb.in/2016/01/whether-accused-can-be-acquitted.html
