LexSTATE OF U.P. versus MUSHTAQ ALAM
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+- A STATEOFU.P. >-- _._ .... v. MUSHTAQ ALAM JULY 25, 2007 B [DR. ARIJIT PASA YAT AND P.P. NAOLEKAR, JJ.] .... Penal Code, 1860-s. 302-Murder-Prosecution for-Conviction by A trial court in view of evidence of one eye-witness and two other witnesses- c Acquittal by High Court disbelieving the evidence of the witnesses and finding the oral evidence contrary to medical evidence-On appeal, held: Accused rightly acquitted-Reasoning indicated by High Court disbelieving prosecution version does not suffer from infirmity. Evidence-Oral evidence vis-a-vis medical evidence-Evidentiary D value-Held: Though oral testimony has to get preference over medical evidence yet, when Medical evidence totally improbablises an oral testimony, •· ~ it is a relevant factor. Appellant-accused was charged for having caused death of one person. E It was alleged that accused fired at the deceased while he was going with PW- 1. On hearing the cries of PW-1 and the deceased, PW-4 and thereafter PW- 7 reached the spot. Deceased was taken to hospital. A case u/s 307 IPC was registered. After the report of death of the deceased, the same was converted to one u/s 302 IPC. During trial PW-1 was examined as eye-witness and he claimed to have seen the accused. Trial Court finding the evidence of PWs 1, F 4 and 7 as credible and cogent, convicted the accused. High Court held that the evidence of PWs 1, 4 and 7 did not inspire confidence; and that prosecution ...J,.-c version was rendered untruthful in view of the medical evidence. Thus the accused was acquitted. Hence the present appeal. Dismisdng the appeal, the Court G HELD: 1. The reasoning indicated by the High Court to discard the prosecution version, does not suffer from any infirmity to warrant interference. [Para 14) [530-G) \- 2. The High Court has taken note of ·several factors to find the . H ·~ 526 >- - ......_ - >- st#- -;.. -4- STATEOFU.P.v. MUSHTAQALAM 527 prosecution version improbable. PW-1 stated that he and the deceased had A gone to take tea after dinner. In the post mortem report it was found that there was no presence of food in the stomach except 20 grams of watery fluid and even the small intestines were empty. According to PW-1 the Police Constable (PW-7) arrived at the spot immediately and he had taken the deceased to the hospital. Both PWs. 1 and 4 admitted that the names of the assailants were B not disclosed by PW-1 to PW-7. Only name of the deceased was told. The High Court found it improbable that when the Police Constable had arrived at the spot why the name of the assailant could not have been told. Further, PW-1 had accepted that he had not accompanied the deceased to the hospital and waited at the spot for about 40 minutes before he left for the police station to lodge the first information report. This, according to the High Court, was c also on-natural conduct. In a normal course, he could have either accompanied the deceased or could have immediately gone to the police station which was not very far away from the place of occurrence to lodge the FIR. [Para 12) [529-H; 530-A-CJ 3. The presence of PWs. 1 and 4 at the spot has also been found to be D not established. PW-4 is the owner of a tea stall. The High Court found that he had no reason to go out in the night to take tea at another tea stall which was at a distance from his own house. The evidence of PW-I so far as manner of assault and about his presence has been stated to be not consistent. In the examination-in-chief he stated that both he and the deceased were coming E together when the accused put the pistol on the side of the deceased and shot. On being shot at, both PW-1 and the deceased cried loudly but in the cross examination he categorically admitted that he was at a distance and was coming behind the deceased as he had stopped mid way to urinate. That is why he was not by the side of the deceased. The High Court referred to this aspect to conclude that possibility of his having seen the assailant was remote. F (Para 121 (530-E-Fl 4. So far as the gun shot injury is concerned, the prosecution version was contrary to what PW-1 deposed. Though oral testimony has to get preference over the medical opinion, yet when the latter totally improbablises a witness's oral testimony, same is a relevant factor. (Para 131 [530-D] G CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 284 of 2001. From the Judgment & Order dated 30.11.1
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