LexSTATE OF U.P. versus HARI CHAND
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j [2009] 7 S.C.R. 149 STATE OF U.P. V. HARi CHAND Criminal Appeal No. 1221 of 2004 APRIL 29, 2009 (DR. ARIJIT PASAYAT AND ASOK KUMAR GANGULY, JJ.) PENAL CODE, 1860: A B s.302- Murder- Two accused caught hold of the victim c and two shot him dead - conviction of two accused by trial court - Acquittal by High Court - On grounds of variance in testimonies of eye witnesses and medical evidence - Held: Conclusions of High Court are full of surmises and conjectures - There was no reason for High Court to discard credible, 0 cogent and trustworthy evidence of eye-witnesses - Oral testimony regarding injuries caused by firearms is amply corroborated by medical evidence.....: This was not a case where medical evidence was at variance with ocular evidence - Even otherwise, oral evidence has primacy unless it is totally irreconcilable with medical evidence- Judgment of High Court E set aside and that of trial court restored. The respondents alongwith two others were prosecuted for commission of offence punishable uls 302 IPC. The prosecution case was that there was a property F dispute between the victim and respondent no.1. The latter was stated to be a notorious person and had infused terror in the mind of the victim, who, for this reason, used to sleep at the house of P.W.3. On the night of the incident when the victim was sleeping outside the house of PW.3 G and his mother (PW 1) and daughter (PW 2) were sleeping in the Verandah, the respondents armed with firearms along with two others came there. The victim was caught hold of by two persons and the respondents shot him 149 H 150 SUPREME COURT REPORTS [2009] 7 S.C.R. A dead. The trial court convicted the respondents and acquitted the remaining two. The High Court having acquitted the accused, the State filed the appeal. Allowing the appeal, the Court B HELD: 1.1 The High Court by a practically non- reasoned order directed acquittal. The conclusions reached by it are full of surmises and conjectures; and there has been no serious attempt to analyse the evidence. The trial court after careful analysis of the evidence found the accused guilty. In the first information report which C was lodged almost immediately after the occurrence, the names of the accused persons were specifically mentioned. The doctor's evidence shows that the firearm- wounds were possible when the firing was done from a short distance. The hypothetical conclusion of the High D Court that nobody would risk holding a person when somebody is shooting is not correct because the shooting was done from a very close distance. The question of such a person holding the deceased getting hit does not arise in such a situation. In any event, such a hypothetical E reason would not be sufficient to discard credible eye witness version. [para 4 and 10] [152-H; 153-A; 154-F-G; 155-A-C] 1.2 The prosecution has explained as to why PWs have not stated about incised wounds. The witnesses F have clearly stated that when the deceased was being taken away they had not seen the nature of attacks but they had seen actual shooting. If during the process of taking the deceased any incised wound is inflicted that obviously could not have been seen by the PWs. G [para 11] [155-C-D] 1.3 There was no reason for the High Court to discard ,. the credible, cogent and trustworthy evidence of the eye witnesses. This was certainly not a case where medical evidence was at a variance with the ocular evidence. The H evidence of the eye witnesses regarding injuries caused :. - ·STATE OF U.P. V. HARi CHAND 151 by the firearms is amply corroborated by the evidence of A the doctor who found four firearms-wounds. In any event, unless the oral evidence is totally irreconcilable with the medical evidence, it has primacy. It would' be erroneous to accord undue primacy to the hypothetical answers of medical witnesses to exclude the eye-witness account B which had to be tested independently and not treated as the "variable" keeping the medical evidence as the "constant". It is trite that where the eye-witness account is found credible and trustworthy, medical opinion pointing to alternative possibilities is not accepted as c conclusive. [para 12-13 & 14) [155-D-G] 2. During the pendency of the appeal respondent no.1 has died. Appeal stand abated so far as he is concerned. Respondent no.2 would surrender. [para 15- 16) [156-C-D] D CRIMINALAPPELLATE JURISDICTI
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