Suraj Singh vs State Of U.P

2. Background facts in a nutshell are as follows:

5. Firearm wound of entry 0.4 cm x 0.3 cm x muscle deep on front of neck 2.5 cm right to midline just above the clavicle. Margins inverted and charred.

6. Firearm wound of entry 0.3 cm. x 0.3 cm. x muscle deep on right side of neck 3.00 cm away from injury No.5 just 3.00 cm above the clavicle. Margins charred and inverted.

7. Multiple firearm wounds of entry 0.4 cm x 0.3 cm x chest cavity deep to 0.4 cm x 0.4 cm muscle deep in size in an area of 7.00 cm x 6.00 cm on front of chest midline on both sides in middle part of front chest. Margins charred and inverted.

4 On internal examination, two metallic pieces were recovered from the soft tissues of the neck, two from left ventricle, one pellet from right chest cavity and one from abdomen cavity. The death had occurred due to shock and haemorrhage owing to ante-mortem injuries.

Apart from the medical and formal evidence including that of investigation, the prosecution relied upon the testimony of Jaivir Singh (PW-1) and Sant Saran (PW-2) as eye-witnesses. The defence was of denial.

Trial Court held that there were discrepancies and accusations have not been established. An appeal was filed by the State.

The High Court found that there was no discrepancy so far as the medical evidence and the ocular evidence is concerned. It was also held that non examination of other persons did not adversely affect the credibility of the evidence tendered, and when there is direct evidence of eye witnesses the alleged 5 inconsistency relating to distance from which the gunshots were fired is of no consequence particularly when the prosecution version relating to assault by guns and pistol substantially tallied with the medical evidence. Accordingly, appellant was found guilty of offence punishable under Section 302 IPC and sentenced to undergo imprisonment for life.

(4) If such an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court.

7. It may be stated that more or less similar provisions were found in the Code of Criminal Procedure, 1898 (hereinafter referred to as "the old Code") which came up for consideration before various High Courts, Judicial Committee of the Privy Council as also before this Court. Since in the present appeal, we have been called upon to decide the ambit and scope of the power of an appellate court in an appeal against an order of acquittal, we have confined ourselves to one aspect only i.e. an appeal against an order of acquittal.

whether any of the accused committed any offence or not".

(emphasis supplied)

40. Coming to the plea that the medical evidence is at variance with ocular evidence, it has to be noted that it would be erroneous to accord undue primacy to the hypothetical answers of medical witnesses to exclude the eyewitnesses' account which had to be tested independently and not treated as the "variable" keeping the medical evidence as the "constant".

....... ..................................J. (Dr. ARIJIT PASAYAT) ..........................................J. (Dr. MUKUNDAKAM SHARMA) New Delhi, July 24, 2008 38