Establishing a conflict between the ocular evidence and the medical evidence: SC

State Vs. Azam @Rihan in Crl.L.P.No. 576 of 2016 - Has held that the victim is the best witness to depose the factum of rape and by whom it was committed and same has to be given utmost importance.  Moving forward the Court has held that "In order to establish a conflict between the ocular evidence and the medical evidence, there has to be specific and material contradictions."  Where the eye witnesses' account is found credible and trustworthy, medical opinion pointing to alternative possibilities may not be accepted as conclusive. The expert witness is expected to put before the court all material inclusive of the date which induced him to come to the conclusion and enlighten the court on the technical aspects of the case by examining the terms of science, so that the court, although not an expert, may form its own judgment on those   material after giving due regard to the expert's opinion.

But wherein all the three material witnesses who are ocular witnesses including the victim, it is very well established on record that they had failed to identify the accused to be the same person who had committed the offence. In these circumstances whenever there is conflict between expert evidence and ocular testimony normally ocular testimony should be preferred unless it belied fundamental facts as has been held by Hon'ble Supreme Court in State of Punjab Vs. Hakam Singh 2005 (3) JCC 1554.

K Vs. The State (NCT of Delhi) & Anr. - Has held that the conviction solely on the basis of the DNA report is not sustainable which is only a corroborative piece of evidence. The trail court has failed to appreciate that even the proper custody of the case property has not been proved.        

Ramesh Chander Vs. State of Delhi C.A. 526 of 2002 - It is necessary to establish the offence of Sec 498A IPC to prove the charges under Sec. 304BIPC. The prosecution has failed to lead sufficient evidence to prove the guilt of the appellant under Sec. 498A IPC, which tantamount to not proving the commission of offence under Sec. 304B IPC. The prosecution has miserably failed to establish beyond reasonable doubt any cruelty or harassment was meted out to the deceased by the appellant, let alone soon before her death- The prosecution has failed to establish that after the marriage of the deceased, there were circumstances of harassment or cruelty that took place on account of demand of dowry which could connect with the death of the deceased.

It is not necessary for a witness to make a statement in consonance with the wording of the section of a statute- what is needed is to find out whether the evidence brought on record satisfy the ingredients thereof.

The Court held that for the conviction under section 304B the necessary ingredients are:

i. Deceased was the subject matter of cruelty on account of dowry and culminates into guilt of accused under section 498A IPC
ii. The death should have taken place due to bodily injuries other than normal circumstances; and
iii. Such death was the subject matter of cruelty soon before death.

And the presumption under section 113B of the Evidence Act can be drawn only where the ingredients of Section 304B are fulfilled. But since there is no evidence to prove the cruelty or harassment by the accused section 113B will not be applicable to the facts of the present case.

Rajesh Vs. State (NCT of Delhi) Crl. Rev. P No 173 of 2016 and Crl.M.B. No. 411 of 2017, testimony of the Victim( Child) can be sole base of the conviction if there are no material infirmities or discrepancies extracted. No ulterior motive was assigned, prior to the incident there was no animosity or ill will between the parties to falsely rope in the accused for the heinous offence.

If after careful scrutiny of the testimony of the child witness the court comes to the conclusion that there is impress of truth in it then there is no reason as to why the court should not accept the evidence of the child.

The author can also be reached at Advocate.kapilc@gmail.com