LexSUCHAND PAL versus PHANI PAL AND ANR.
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
A SUCHAND PAL V. PHAN! PAL AND ANR. NOVEMBER 6, 2003 B [DORAISWAMY RAJU AND ARIJIT PASAYAT, JJ.] Penal Code, 1860/Arms Act, 1959-Sections 302 and 307/Section 25- Murder-Prosecution-Different versions of incident by prosecution and defence-Prosecution version inconsistent with medical evidence-Dying C declaration by deceased not made directly but was only an affirmation to her husband's statement-Conviction by trial Court-Acquittal by High Court- On appeal, held: Acquittal justified as there was inconsistency in the prosecution case and medical evidence and the dying declaration is not admissible. Evidence Act, 1872-Section 32-Dying Declaration-Nature of- D Statement not made directly by the deceased-Only affirmed the statement of her husband-Held: such response of the deceased cannot be elevated to the level of dying declaration. Practice and Procedure : Criminal case-Review of order of acquittal by appellate Court- Permissibility of-Held: Generally it is not permissible but where an admissible evidence is ignored, a duty is cast upon the appellate court to re appreciate the evidence. Respondent-accused alongwith 4 accused was charged for offences u/s 302, 307, 447 IPC and respondent-accused was further charged under Section 25 of Arms Act, 1959. Two of the accused died before completion E F of trial. As per the prosecl!Oon there was strained relation between the complainant and accused party and over a dispute respondent-accused fired shot with a gun at PWl who escaped the same and fired another G gunshot from a distance which caused injury to the wife of PWl. Defence pleaded innocence and false implication and stated that one of the accused had taken out the gun in self defe~ce and when the complainant party started scuffle with him, a shot was accidentally fired which hit the 281 H 282 SUPREME COURT REPORTS [2003] SUPP. 5 S.C.R. A deceased. According to the medical evidence injury on the. deceased was possible by a gunshot fired from a short range. During trial prosecution varied its stand stating that the gun was fired from a short range. Prosecution also relied on dying declaration of the deceased. But the person recording the statement admitted that the husband of the deceased had B answered the queries and the deceased had merely affirmed them. Trial Court relying on the prosecution version convicted the respondent-accused. However, other two accused were acquitted. On appeal, High Court acquitted the respondent relying on defence version holding that as regards injuries on the deceased, prosecution vers~on was not supported by medical evidence and the prosecution tried to improve upon its version in order C to reconcile the oral and the medical evidence; and that the dying declaration having been answered by the husband of the deceased and her merely affirming to it, the same was not acceptable. In appeal to this Court appellant-informant contended that merely because medical evidence was different, the reliable ocular evidence could D not have been discarded; and that the dying declaration should haove been relied on. Dismissing the appeal, the Court HELD : I. I. There is no infirmity in the judgment of the High Court E to warrant interference. The trial Court appears to have discarded the defence version highlighting unacceptability of the prosecution version, and came to a conclusion that the shot was made from a close range. This plea was taken at the argument stage by the prosecution, trying to read prosecution evidence in a manner so that the ocular evidence and medical F evidence do not appear to be irreconcilable. High Court was right in disapproving the course adopted by the Trial Court. Prosecution can succeed by substantially proving the version it alleges. It must stand on its own legs and cannot take advantage of the weakness in defence case. The Court cannot on its own make out a new case for the prosecution and convict the accused on that basis. Only when a conclusion is arrived at on G the evidence and the substratum of the case is not changed, such a course is permissible. The High Court noticed the medical evidence to be consistent with the defence version that the deceased was hit by the gunshot from a close range and that she was accidentally shot in the scuffle between the informant party and the accused. [289-B; 288-C-F[ H ( SUCHAND PAL v. PHAN! PAL 283 1.2. High Court has rightly discarded the dying declaration.
Excerpt shown. Read the full judgment & AI analysis in Lexace.