LexL/NK. MEHARAJ SINGH/KALU versus STATE OF UTTAR PRADESH
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A B LINK. MEHARAJ SINGH/KALU v. STATE OF UTTAR PRADESH APRIL 21, 1994 [DR. A.S. ANAND AND FAIZAN UDDIN, JJ.) Indian Penal code, 1860 : I S.302-Murder-Trial oHye-witnesses not believed-All accused C aquitted-On appeal High Court maintained aquittal of one and convicted the other two accused-Sentenced to life imprisonment-Held : keeping in view their unnatural conduct, it could be said that none of the witnesses had actually seen the occwrence-Accused roped in on account of misguided suspicion because of previous enmity-Conviction and sentence recorded by the High Court set aside. D K. and M along with N and B were challenged for an occurrence which allegedly took place on 3-11-1977 at 11.15 A.Min which the deceased L died. K and N are both brothers and B is their nephew. The F.I.R. is said to have been lodged at about 12.45 P.M. by the father of the deceased. The prosecution alleged that there was background of hostility between E the parties of the deceased and the accused. The prosecution version of the incident ls that when the deceased along with his wife P.W. 3 were loading Jawar in their cart, the accused persons armed with gun, country made pistol and knife, attacked him. N. & K are alleged to have shot at the deceased with their respective weapons, while M is said to have F caused injuries to the deceased with knife, after he had fallen down. In support of its case the prosecution examined four alleged eye-witnesses viz. P.W. 2, P.W .3 (wife of the deceased), P.W. 4 and P.W. 5. The Trial Court acquitted all the accused. The State appealed to the High Court. N died during the pendency of their appeal before the High G Court and therefore the appeal abated in respect of him. The High Court maintained the acquittal of B while reversing the acquittal of K and M and convicting them of various offences including the one punishable under Section 302 IPC and sentenced them to life imprisonment. The State did not file any appeal against the acquittal of B, K and H M appealed to this Court. 592 ·~ ' - MEHARAJ SINGH v. STATE OFU.P. 593 ;• Allowing the appeals and setting aside their convictions and senten- A ces, this court HELD : 1. The observation of the High Court that the injuries were caused by four different shots is not the opinion of the doctors because no elucidation was sought from the doctor in this behalf, The High Court divided the injuries, without any basis and ignored certain vital aspects like B - ' the factum that injury No.13 consists of three wounds on the right arm upper ' part which is at quite a distance from injury No.4. There is no evidence, direct or indirect, about the height or health of the deceased but nevertbe- less the High Court attempted to explain the direction of injuries Nos.5 and 6 by observing that the deceaSl'd was well built and so would be presumed to c be taller than the accused assailants. This is a purely conjectural finding based on surmises and not on any evidence on the record. [ 600-E-H] 2. The High Court also, without any evidence, observed that the level of the path way is normally 'slightly higher than the field with a view to ' explain the directions of the injury as from upwards. (601-A] D 3. The presence of blackening and tattooing would show that the -- shots had been fired from a closer range. No explanation was offered by the prosecution and the High Court also did not properly appreciate this aspect of the case. (601-B-C] ' E 4. The finding of the High Court regarding the incised wounds found on the dead body of the deceased is even more conjectural which is neither supported by the medical data nor by the medical opinion. [601-C] S. Medical evidence is only an evidence of opinion and is not ~ '· conclusive, The High Court can decide the case on the basis of the F evidence led and not on what ought to have been led. No explanation from the medical witness was sought about the reason for three different types of incised injuries found on the deceased and whether the same could have been caused by one weapon alone. (601-F-G] • 6. According to the Doctor, the presence of semi-digested food would G show that if the deceased had taken his food at about 7 a.m., bis death could have taken place between 9 and 9.30 a.m. It would imply that he occurrence . ~" took place much earlier tl1an is alleged by the prosecution . (601-G-H; 602-A] 7. The FJ.R. in the case was not recorded at the t
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