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Mohan Sardar v/s The State of West Bengal

    CRA No. 475 of 2005

    Decided On, 11 August 2016

    At, High Court of Judicature at Calcutta

    By, THE HONOURABLE MR. JUSTICE DEBASISH KAR GUPTA & THE HONOURABLE MR. JUSTICE MD. MUMTAZ KHAN

    For the Appearing Parties: Meenal Sinha, Ranabir Roy Chowdhury, Advocates.



Judgment Text

Debasish Kar Gupta , J.

1. This appeal is directed against conviction of the appellant for commission of offence punishable under Section 302 of the Indian Penal Code (hereinafter referred to as the I.P.C.) and sentence to suffer rigorous imprisonment for life as also to pay a fine of Rs.5000/- in default to suffer rigorous imprisonment for six months passed by the learned Additional Sessions Judge, Fast Track Court, First Court, Baruipur, South 24-Parganas in S.T. 2 (8) of 2004 arising out of S.C. 43 (7) of 2004.

The prosecution case in a nutshell is as follows:-

On June 13, 2003 at about 2 p.m. a quarrel took place in between Madan Sardar (the deceased) of Purba Rupnagar, Police Station-Joynagar, District-South 24-Parganas and his younger brother Mohan Sardar (the appellant) at their dwelling house arising out of refusal on the part of the appellant to hand over the possession of a land to the deceased which he had purchased from the appellant. After bathing, the deceased went to kitchen for taking lunch. At that time, the appellant opened fire from his gun aiming at the deceased through a small window of his (appellant’s) room. The deceased fell down on the ground sustaining bullet injury. He was first brought to Jalaberia More by the PW 1 (widow of the deceased) and PW 5 (younger son of the deceased) on a van of PW 11. Then he was brought to Joynagar Rural Hospital by PW 1 and PW 5 in a motor vehicle at about 15.05 hours. He was declared dead by the doctor.

On receipt of an information from the medical officer of the above hospital at Kultuli police station, South 24-Parganas with regard to unnatural death of a person on the same day, i.e. June 13, 2003, Sri Suklal Ray (PW 19) went to the aforesaid hospital after initiating Kultali P.S. U.D. Case No.11 dated June 13, 2003, at 20.30 hours as per direction of the Officer-in-Charge, Kultali Police Station. He held inquest on the dead body of the deceased. Thereafter, he sent the dead body to Mominpur Morgue through a constable Ramesh Chandra Dhali (PW 15).

In the meantime, on June 13, 2003, at about 18.03 hours an information was received in Joynagar Police Station, District-South 24- Parganas, over telephone from an unknown person that a person named Madan Sardar had received bullet injury and his condition was critical. After noting down the above information in the General Diary under Entry No.1081 dated June 13, 2003, the Officer-in-Charge, Joynagar Police Station and PW 20 arrived at the village- Purba Rupnagar at 16.55 hours along with force. They came to know from the PW 1 that the appellant had opened fire from his gun aiming at the deceased and he succumbed to such bullet injury on his chest.

On June 13, 2003 at 17.45 hours the PW 20 received a written complaint from the PW 1 in course of his investigation at Purba Rupnagar. One Kamal Kanta Mondal scribed the above written complaint. On receipt of the above written complaint formal FIR bearing Joynagar P.S. Case No.99 dated June 13, 2003 was drawn at 21.05 hours by the PW 16 after making entry bearing No.1096 in the General Diary.

The PW 20 got instruction from the Officer-in-Charge, Joynagar Police Station to conduct investigation. During investigation, the PW 20 prepared rough sketch map of the place of occurrence with an index. He seized some blood stained earth, natural soil from the place of occurrence and prepared seizure list of the same. Thereafter, he went to the Joynagar Rural Hospital. After examining the PW 8 (the doctor of the aforesaid hospital) as also collecting relevant medical report, he returned back to the Joynagar Police Station. He further collected the papers relating to the aforesaid Kultuli P.S. U.D. Case No. 11 dated June 13, 2003, from the Police Station concerned. But the aforesaid seized articles were not sent to Forensic Laboratory for examination. The appellant could not arrest him because he was absconding.

The PW 17 held post mortem examination over the dead body of the deceased on June 15, 2003 at about 14.30 hours. On superficial examination and dissection he found the following injuries:-

' i) 'Bruises over left side of chest wall and left flank measuring 10' x 7'.

ii) One gun-shot-wound of entrance with evidence of scorching, singing, Blackening, Conlused, abarded, tattooing, lacerated, inverted skin margin placed over left side chest wall anteriorly measuring ' x ' x cavity deep – 5 ' left of mid line and 1 ' above the left nipple – on dissection and tracing the tract of the wound it is found to have prier skin tissues muscles – fracture of fourth rib through and through – anteriorly – pleura through and through – both lobes of the lungs through and through again Piercy pleura with evidence of fracture of 8th rib on the left side back portion through and through and finally coming out from the left scapular region measuring 1' x 1' x cavity deep with evidence of everted skin margin – 4' left of mid line.

iii) Bruises over right parietal, right temporal and occipital region measuring

8'x 6'.'

(Emphasis supplied)

According to the opinion of the PW 17 the death was due to the effect of gunshot injury, anti-mortem and homicidal in nature.

After completion of the investigation, charge-sheet bearing no.116 dated August 27, 2003 was submitted against the appellant under Section 302 of the I.P.C. showing him absconder. Subsequently, on May 3, 2004, the appellant was arrested.

Charge was framed against the appellant on August 12, 2004 for commission of offence punishable under Section 302 of the I.P.C. After taking into consideration the evidence of twenty (20) prosecution witnesses, the statement of the accused recorded under Section 313 of the Criminal Procedure Code (hereinafter referred to as the Cr.P.C.) as also the documentary evidence the impugned judgment was passed.

It is submitted by Ms. Meenal Sinha, learned Amicus Curiae, that the place of occurrence of death of the victim was not proved beyond all reasonable doubt from the evidence on record. There was failure on the part of the investigating agency to send seized blood stained earth and natural earth to the forensic laboratory for obtaining report or to seize wearing apparel of the victim in order to prove the place, date and time of death of the victim as claimed by the prosecution. According to Ms. Sinha, the investigation was conducted in violation of the provisions of Regulation 299 read with B.P. Form No.48 of the Police Regulation of Bengal apart from failure on the part of the I.O. to seize the apparels of the victim and/or the van which was used for sending the victim to the hospital after sustaining injury.

According to Ms. Sinha, the oral evidence as also the documentary evidence on record leads to a doubt with regard to the lodging of FIR on the date and at the time as claimed in the prosecution case. It is also submitted by Ms. Sinha that the preparation of inquest report in respect of dead body of the victim as also sending of the dead body to Mominpur Morgue for post mortem examination on the date and at the time as claimed by the prosecution was also not proved beyond all reasonable doubt.

According to Ms. Sinha, the charge framed against the appellant was also defective due to non-incorporation of the place and time of occurrence of death of the victim therein.

According to Ms. Sinha, PW 4, PW 8, PW 11 and PW 18 were planted witnesses of the prosecution. It is also submitted by Ms. Sinha that the documentary evidence relating to the selling a plot of land by the appellant to the victim was also planted one.

It is strenuously submitted by Ms. Sinha that the nature of injuries mentioned in the post mortem report demolished the evidence of the purported eyewitnesses produced on behalf of the prosecution to prove the commission of offence by the appellant so far as death of the victim consequent upon sustaining gunshot injury at his (appellant’s) instance was concerned. It is pointed out by Ms. Sinha that the weapon of offence claimed to have been used by the appellant to kill the victim as also the bullet used by him were not seized. It is ultimately submitted by Ms. Sinha that there was no evidence on record with regard of witnessing the appellant to assault the victim by opening fire from his gun.

It is finally submitted by her that the appellant was implicated falsely in the matter of death of the victim.

Ms. Sinha relies upon the decisions of Suchand Pal vs. Phani Pal & Anr., reported in AIR 2004 SC 973, Habeed Mohammad vs. State of Hayderabad reported in AIR 1954 SC 51 and Thanedar Singh vs. State of Madhya Pradesh reported in AIR 2002 SC 175 in support of her aforesaid submissions.

Mr. Ranabir Roy Chowdhury, learned State Advocate, vividly opposed the aforesaid submissions made by Ms. Sinha. Drawing our attention towards the evidence of the PW 8 (the doctor) and PW 19 (the Sub-Inspector of police who had received the information of death of the victim) in Kultali Police Station and PW 20 (I.O.), it is submitted by him that the place, time and date of occurrence were proved beyond all reasonable doubts.

According to him, consideration of the FIR, inquest report and the information available from the post mortem report proved the allegation of anti-dating of the FIR baseless.

According to Mr. Roy Chowdhury, the altercation and scuffling in between the appellant and the victim at the place of occurrence on the date and at the time, as claimed by the prosecution, was proved beyond all reasonable doubt from the evidence of the eyewitnesses namely, PW 1, PW 2, PW 4 and PW 5. According to Mr. Roy Chowdhury, the sending of the dead body to Mominpur Morgue and handing over the dead body of the victim to PW 15 was proved beyond all reasonable doubts from the evidence of PW 15 and PW 19 apart from the post mortem report of the PW 17.

Finally, it is submitted by Mr. Roy Chowdhury that the commission of offence by the appellant on the date and time at the place of occurrence and in the manner in which the prosecution had claimed, was proved in the trial on the basis of the evidence.

We have heard the learned Counsels appearing for the respective parties at length and have considered the facts and circumstances of this appeal on the basis of the evidence on record.

With regard to the first contention of the appellant that failure on the part of the investigation agency to send the seized blood stained earth and natural earth to the forensic laboratory for obtaining report thereof, the same relates to a defect of investigation. It was observed by the Hon’ble Supreme Court in Karnel Singh vs. State of M.P., reported in (1995) 5 SCC 518 that in cases of defective investigation the court has to circumspect in evaluating the evidence but it would not be right in acquitting an accused person solely on account of the defect. Otherwise it would amount to depending in the hands of the investigating officer in the event the investigation is designedly defective. The relevant portion of the above decision is quoted below:-

'5. Notwithstanding our unhappiness regarding the nature of investigation, we have to consider whether the evidence on record, even on strict scrutiny, establishes the guilt. In cases of defective investigation the court has to be circumspect in evaluating the evidence but it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective. . . .'

Similar view was taken by the Hon’ble Supreme Court in the matter of Amar Singh vs. Balwinder Singh & Ors., reported in (2003) 2 SCC 518. It was observed that failure of the investigating officer in sending the firearms and the empties for comparison could not completely throw out the prosecution case when the same was fully established from the testimony of eyewitnesses whose presence on the spot could not be doubted as they all received gunshot injuries in the incident. The relevant portions of the above decision are quoted below:-

'15. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

It would have been certainly better if the investigating agency had sent the firearms and the empties to the Forensic Science Laboratory for comparison. However, the report of the ballistic expert would in any case be in the nature of an expert opinion and the same is not conclusive. The failure of the investigating officer in sending the firearms and the empties for comparison cannot completely throw out the prosecution case when the same is fully established from the testimony of eyewitnesses whose presence on the spot cannot be doubted as they all received gunshot injuries in the incident. . . . .'

Considering the evidence on record in the present case we find from the evidence of PW 2, the daughter of the deceased person, that the deceased came to the kitchen on June 13, 2002 at the material point of time to take meal. He fell down on the ground receiving gunshot injury on his chest. According to the above witness, her father succumbed to injury on spot in her presence. According to the evidence of PW 4, who claimed to be the daughter-in-law of the deceased person, the deceased person sustained injury caused by bullet which had come out of a firearm on the aforesaid dated at the material point of time and the place of occurrence was the kitchen. Therefore, the failure on the part of the investigating officer to collect the forensic report of the seized blood stained earth and natural earth gave us some anxious moment at first blush but the impugned judgement should not be interfered with on that ground alone.

With regard to the second contention of the appellant casting doubt about the antedating of the FIR we would like to refer to the observations made by the Apex Court in Meharaj Singh vs. State of U.P., reported in (1994) 5 SCC 188 for applying the external checks as discussed therein. The relevant portion of the above decision is quoted below:-

'12. FIR in a criminal case and particularly in a murder case is a vital and valuable piece of evidence for the purpose of appreciating the evidence led at the trial. The object of insisting upon prompt lodging of the FIR is to obtain the earliest information regarding the circumstance in which the crime was committed, including the names of the actual culprits and the parts played by them, the weapons, if any, used, as also the names of the eyewitnesses, if any. Delay in lodging the FIR often results in embellishment, which is a creature of an afterthought. On account of delay, the FIR not only gets bereft of the advantage of spontaneity, danger also creeps in of the introduction of a coloured version or exaggerated story. With a view to determine whether the FIR was lodged at the time it is alleged to have been recorded, the courts generally look for certain external checks. One of the checks is the receipt of the copy of the FIR, called a special report in a murder case, by the local Magistrate. If this report is received by the Magistrate late it can give rise to an inference that the FIR was not lodged at the time it is alleged to have been recorded, unless, of course the prosecution can offer a satisfactory explanation for the delay in despatching or receipt of the copy of the FIR by the local Magistrate. Prosecution has led no evidence at all in this behalf. The second external check equally important is the sending of the copy of the FIR along with the dead body and its reference in the inquest report. Even though the inquest report, prepared under Section 174 CrPC, is aimed at serving a statutory function, to lend credence to the prosecution case, the details of the FIR and the gist of statements recorded during inquest proceedings get reflected in the report. The absence of those details is indicative of the fact that the prosecution story was still in an embryo state and had not been given any shape and that the FIR came to be recorded later on after due deliberations and consultations and was then ante-timed to give it the colour of a promptly lodged FIR. In our opinion, on account of the infirmities as noticed above, the FIR has lost its value and authenticity and it appears to us that the same has been ante-timed and had not been recorded till the inquest proceedings were over at the spot by PW 8.'

(Emphasis supplied)

The above settled principles of law was approved by a three Judges Bench of the Hon’ble Supreme Court in Thanedar Singh vs. State of M.P., reported in (2002) 1 SCC 487.

In the instant case we find reference of the Kultali P.S. U.D. Case No.11 dated June 13, 2003 in the inquest report of dead body of the deceased person prepared by the PW 19 at Joynagar Rural Hospital. PW 8, the medical officer of the above hospital was one of the witnesses of the above inquest report. It is further revealed from the above evidence that the dead body of the deceased was sent to Mominpur Morgue by him for holding post mortem examination. From the post mortem report no.1538 dated June 15, 2003, we find the reference of the above Kultali P.S. U.D. case from the evidence of PW 20 (I.O.). We find that the papers relating to the above U.D. case under reference were collected by him for placing the same in case diary relating to the FIR bearing Joynagar P.S. Case No.99 dated June 13, 2003. It is necessary to point out that according to the evidence of PW 19, he went to the aforesaid hospital on receipt of an information from the medical officer of the above hospital initiating Kultali P.S. U.D. case under reference. In the meantime, the PW 20 (I.O.) reached the place of occurrence on the same date at about 18.03 hours on receipt of an information in Joynagar Police Station over telephone from an unknown person after noting down the above information in general diary under Entry No.1081 dated June 13, 2003. He received the written complaint at the place of occurrence at the about 17.45 hours and the Joynagar P.S. Case No.99 dated June 13, 2003 was drawn on the aforesaid date on 21.05 hours after making G.D. Entry No.1096 in the above police station. Subsequently, PW 20 (I.O.) collected the papers relating to the above Kultali P.S. U.D. case and placed those papers in the case diary relating to Joynagar P.S. under reference. Therefore, we do not find any substance with regard to the above contention of the appellant.

Regarding the next contention of the appellant that the charge framed against the appellant was defective due to non-incorporation of the place and time of occurrence of death of the victim therein, according to the provisions of sub-section (1) of Section 212 of the Cr.P.C., the charge should contain such particulars as to the time and place of the alleged offence, and the person (if any) against whom, or the thing (if any) in respect of which it was enquired to be stated in the charge. It has been observed by the Hon'ble Supreme Court in Bhimanna vs. State of Karnataka, reported in (2102) 9 SCC 650 that unjust conviction not only leads to 'failure of justice' but acquittal of guilt may also leads to the 'failure of justice' as a result of unjust failure to produce requisite evidence. It has further been observed by the Hon’ble Supreme Court in the above decision that the accused must show that he suffered some disability or detriment in the protections available to him under the Indian criminal jurisprudence then only he can seek benefit under the order of the Court. The relevant portions of the above decision is quoted below:-

'28. The court must endeavour to find the truth. There would be 'failure of justice' not only by unjust conviction but also by acquittal of the guilty, as a result of unjust failure to produce requisite evidence. Of course, the rights of the accused have to be kept in mind and safeguarded but they should not be over emphasised to the extent of forgetting that the victims also have rights. It has to be shown that the accused has suffered some disability or detriment in the protections available to him under the Indian criminal jurisprudence. 'Prejudice', is incapable of being interpreted in its generic sense and applied to criminal jurisprudence. The plea of prejudice has to be in relation to investigation or trial and not matters falling beyond their scope. Once the accused is able to show that there has been serious prejudice caused to him with respect to either of these aspects, and that the same has defeated the rights available to him under jurisprudence, then the accused can seek benefit under the orders of the court. (Vide Nageshwar Shir Krishna Ghobe v. State of Maharashtra, State v. T. Venkatesh Murthy, Rafiq Ahmad v. State of U.P. and Rattiram v. State of M.P.)'

(Emphasis supplied)

In the instant case, charge dated August 12, 2004, was framed against the appellant stating that on June 13, 2003 at village-Purba Rupnagar, P.S.- Joynagar the commission of murder of the deceased person took place. It was not shown by the appellant that he had suffered at least some difficulty or detriment in the protection available to him under the provision of Section 215 0f the Cr.P.C. . Therefore, the impugned conviction does not require our interference on that ground.

Regarding the next contention of the appellant raising doubt about the credibility of the evidence of PW 4, PW 8, PW 11 and PW 18 so far as the time and place of occurrence were concerned, we find from the evidence on record that the deposition of PW 4 in respect of a transaction in between the deceased person and the appellant for purchasing land was corroborated from the evidence of PW 20. According to his statement made in course of examination-in-chief, a document in this regard was seized and exhibited as Exbt.-9. The evidence of PW 4 with regard to sustaining of a bullet injury by the deceased person on is chest while he was standing in the kitchen of his residence was corroborated from the evidence of PW 2 so far as the place and time of occurrence of death of the victim as also the cause of such death were concerned. PW 8 was the medical officer of Joynagar Rural Hospital. According to his evidence, the deceased person was brought to the above hospital after sustaining injury under reference by PW 5, the younger son of the deceased. The nature of injury stated by him in course of his examination-in-chief was corroborating with those mention in the post mortem report of dead body of the deceased prepared on the basis of the post mortem examination held by PW 17. PW 11 was a local van puller, who arrived at the place of occurrence hearing a hue and cry at the material point of time. He brought his van to the residence of the victim on request of PW 5, younger son of the deceased. He took the deceased to Jalabaria More by his van. According to the evidence of PW 1, PW 2, PW 5 and PW 8, the deceased person was removed to the hospital by PW 5. PW 18 was not an eyewitness. According to his evidence, he was one of the sons of the deceased person. He was a rickshaw puller staying at Kolkata. He was informed of the fact of the death of his father (the victim) by the PW 5. The above evidence of PW 18 was not challenged by the prosecution in cross examination. Therefore, we do not find much force in the above contention of the appellant so far as the place and time of occurrence of death of the victim were concerned.

With regard to the next contention of the appellant of false implication of the appellant in the matter of unnatural death of the victim, we find from the evidence of PW 1 that according to the prosecution case PW 1, PW 2, PW 4 and PW 5 witnessed the murder of the deceased person.

According to PW 1, the deceased person was standing two cubits away from the window of the place of window at the material point of time. The appellant opened fire from his gun aiming at the deceased person from inside the widow of his room. It appeared from the rough sketch map that the dwelling house of the deceased (B) was lying and situated in between the house of the appellant (C) and the place of occurrence, namely kitchen (D). So, the distance of the aforesaid kitchen was not too short from the above window of the room of the appellant and she was not the eyewitness to saw the appellant to open fire from gun from inside the window. That apart, there was a contradiction of the evidence of P.W. 1 with the rough sketch map, so far as the place of occurrence was concerned.

PW 2, the daughter of the deceased person, stated in course of her examination-in-chief that the appellant opened fire from his gun aiming at her father through the window of his room when he (the deceased) came to the kitchen to take meal. In course of his cross-examination she deposed that she was washing utensils at the material point of time sitting just under the above window. So, she was also not the eyewitness to find the appellant to open fire from inside the window of his (appellant’s) room.

PW 4, claiming to the daughter-in-law of the deceased person, also deposed in course of his examination-in-chief that the appellant opened fire from his fire-arm aiming at the deceased person through a small window of his room and the place of occurrence was a kitchen. She further stated in course of her cross-examination that the window of the room of appellant was so small, it might not be possible for a person to see who was inside the room from outside the aforesaid small window. It was stated by the PW 4 in course of her cross-examination that the house of the appellant was situated at a distance of 2 cubits from their house. Necessary to repeat and reiterate that according to the rough sketch map, the dwelling house of the deceased (B) was lying and situated in between the house of the appellant (C) and the place of occurrence, namely kitchen (D). So, the distance of the aforesaid kitchen was not too short from the above window of the room of the appellant and she did not saw the appellant to open fire from gun from inside the window of his (appellant’s) room.

Similarly, PW 5, the younger son of the deceased person, stated that the accused opened fire aiming at his father from his room through the window. According to his deposition in course of cross-examination, he saw the deceased to fall down on the ground after he had heard the sound of firing. So, it was not a direct evidence of finding the appellant to open fire from gun.

On a close scrutiny of the above evidences it is crystal clear to us that all the aforesaid prosecution witnesses found the deceased person to succumb to gunshot injury standing inside the kitchen. The source of his (deceased) injury was a bullet coming through a small window of the room of appellant. But none of them witnessed the presence of appellant inside his room with that gun or to open fire from the same. They were all present at different places outside the above room having a window. According to the evidence of PW 4, the window of the room of appellant was so small that it might not have been possible to find out who was inside the room standing outside that room. Therefore, none of them witnessed the involvement of the appellant in commissioning the above offence.

The other important feature of this incident was that according to the medical evidence, there was one gun-shot-wound of entrance with evidence of scorching, singing, blackening, conlused, abarded, tattooing, lacerated, inverted skin margin placed over left side chest wall anteriorly amongst other injuries. According to HWV Cox 'Medical Jurisprudence and Toxicology' (Seventh Edition, Chapter-7, Section 3), the characteristics of shoot and clothing scorching could only be evident in a case of shot-gun-wound sustained from a near contact range. No blackening could be evident in case of a shot-gun injury sustained from a range of 2 metres or more. For clear understanding the characteristics of shot-gun-wound depending on the various range, figure-43 of the HWV Cox 'Medical Jurisprudence and Toxicology' (Seventh Edition) (see section 3, chapter 7) is reproduced below:-

'IMAGE'

In case of a rifled weapon entry wound sustained over 30 cms no tattooing could be evident. For clear understanding of characteristics of rifled weapon entry wound depending on the various range, figure-42 of the HWV Cox 'Medical Jurisprudence and Toxicology' (Seventh Edition) (see section 3,

'MAGE'

chapter 7) is reproduced below:-

Therefore, according to the post mortem report, in the light of the above Medical Jurisprudence and Toxicology, the deceased person sustained gunshot injury from a very close range since 'Scorching, Blackening, and tattooing' were found around the wound on the dead body of the deceased.

But in the event the evidence of PW 1, PW 2, PW 3 and PW 5 are taken into consideration for ascertaining the distance of opening fire from the firearms aiming at the deceased person, it was more than '2 – Metre Range' or 'Over 30 cms', as the case may be. It was a major contradiction of material dimension reaching at the very root of the prosecution case so far as the question of implicating the appellant in case of murder of the victim was concerned.

I

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t is the settled proposition of law that a credible ocular evidence is not to be discarded when it is somewhat at variance with the medical evidence, yet a doubt can be cast on the truthfulness of the oral evidence when medical evidence is totally contradictory the ocular evidence. In State of U.P. & Anr. vs. Jaggo alias Jagdish & Ors., reported in 1971 (2) SCC 42 referred to the medical evidence in respect of the nature of injuries sustained by the victim to arrive at a conclusion that there was a false implication of several assailants including those alleged to be armed with knives discarding the ocular evidence of the eyewitnesses and the relevant portions of the above decision is quoted below:- 17. The High Court referred to the medical evidence that the injuries meaning thereby incised wounds were caused with heavy sharp edged weapons and that the lacerated wounds were caused by a blunt weapon like Lathi. The doctor also said that the incised wounds were caused with a heavy sharp edged weapon like Pharsa. The injuries were, according to the doctor, sufficient in the ordinary course of nature to cause death. It was also the medical evidence that some of the injuries could be caused by knife having 9 inch long blade. Both the doctors who were examined said that the deceased had no stab wound on his person. On this medical evidence the High Court correctly said that it was highly improbable that a number of persons attacking the victim with Lathis. Pharsas and knives would simultaneously attack the victim not even with the object of giving a stab wound, but only cause him minor incised wounds of the kind mentioned by the doctors. 18. Munna Lal, Sita Ram and Bhikari all said that Lalu was assaulted by those armed with knives after Lalu had fallen. Tara Chand did not mention that Lalu fell down. Sarwan stated that the assailants were standing while assaulting the deceased. The High Court rightly held that the evidence of Munna Lal, Sita Ram and Bhikari was not truthful that knife injuries were caused after the victim had fallen. We find that the decision of Suchand Pal vs. Phani Pal & Anr., reported in (2003) 11 SCC 527, which is relied upon by Ms. Meenal Sinha, Amicus Curiae, is applicable in this case to arrive at a conclusion that the gunshot injuries, as were received by the deceased, were not possible in the manner suggested by the prosecution because the marks of tattooing and scorching were possible only when the gunshot was sustained from a close range. In view of the above, we are of the opinion that the appellant was falsely implicated in the matter of unnatural death of the deceased. This appeal is, thus, allowed. The impugned judgment, order of conviction and sentence are quashed and set aside. The appellant is directed to be released forthwith unless otherwise required in any other case. Before parting with, we appreciate the assistance which has been rendered by Ms. Meenal Sinha, learned Amicus Curiae, to this Court for arriving at the above conclusion. Let this judgment together with the Lower Court’s records be sent back to the learned Court below expeditiously. Urgent photostat certified copy of this judgment, if applied for, be given to the parties, on priority basis. I agree.
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