Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 9
PETITIONER:
SOHRAB S/O BELINAYATA & ANR.
Vs.
RESPONDENT:
THE STATE OF MADHYA PRADESH
DATE OF JUDGMENT02/05/1972
BENCH:
REDDY, P. JAGANMOHAN
BENCH:
REDDY, P. JAGANMOHAN
MITTER, G.K.
CITATION:
1972 AIR 2020 1973 SCR (1) 472
1972 SCC (3) 751
CITATOR INFO :
F 1973 SC2443 (19)
RF 1988 SC 696 (13)
ACT:
Practice and Procedure-Power of High Court in appeal against
acquittal.
HEADNOTE:
In an appeal against acquittal, the High Court, while
maintaining the acquittal of some of the accused, ;reversed
it in respect of the appellants and convicted them of
offences under s, 302 read with s. 34, I.P.C.
Dismissing the appeal to this Court,
HELD : Under ss. 417, 418 and 423, Cr.P.C., the High Court
has full power to, review at large the evidence upon which
an order of .acquittal was founded and to reach the
conclusion that upon the evidence the order of acquittal
should be reversed. But in exercising this power the High
Court should give proper weight and consideration ’to such
matters as, (a) The views of the trial judge as to the
credibility of the witnesses; (b) the presumption of
innocence in favour of the accused, a presumption certainly
not weakened by the fact that he has been acquitted at the
trial; (c) the right of the accused to the benefit of any
doubt, and (d) the slowness of the appellate court to
disturb a finding of fact arrived at by a judge who had the
advantage of seeing the witnesses. It should not only
consider every matter on record having a bearing on the
questions of fact and the reasons given by the Court below
in support of its order of acquittal, but should express its
reasons in its judgment which led it to hold that the
acquittal was not justified. [478 E-H; 479 A-C]
In the present case, the High Court did consider all the
aspects considered by the Sessions Court, with most of which
it has also concurred especially those aspects of the case
in respect of which witnesses tried to embellish and
exaggerate. But that by itself, does not assist the accused
nor can the broad features of the evidence of the
prosecution case be doubted in respect of its version.
Merely because there have been discrepancies and
contradictions in the evidence of some or all of the
witnesses it did not mean that the entire evidence of the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 9
prosecution had to be discarded., It was only after
exercising caution and care and sifting the evidence to
separate the truth from untruth, exaggeration, embellishment
and improvement, that the High Court had come to the
conclusion that what could be accepted implicated the
appellants and convicted them. This Court has held that
falsus in uno falsus in omnibus’. is not a sound rule for
the reason that hardly any one comes across witness whose
evidence does not contain a grain of untruth or at any Ira
some exaggeration or embellishment.. Where, however, the
substratum of the prosecution case, or a material part of
the evidence, could not be belived, it would not be
permissible for the Court to reconstruct a story of its own
out of the rest. [477 G-H; 478 A-D]
Sheo Swarup and Ors. v. King Emperor, A.I.R. 1934 P.C. 227;
Sarwant Singh v. State of Rajasthan, [1961] 3 C.C.R. 120 and
Agarwal v. State of Maharashtra, [1963] 2 S.C.R. 405,
referred to.
473
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 240 of
1969.
Appeal by special leave from the judgment and order dated
August 5, 1969 of the Madhya Pradesh High Court, Indore
Bench in Criminal Appeal No. 26 of 1967.
Frank Anthony, P. C. Chandi, A. T. M. Sampat, E. C. Agarwala
and K. C. Agarwala, for the appellants.
I. N. Shroff, for the respondent.
The Judgment of, the Court was delivered by
P. Jaganmohan Reddy, J. The Sessions Judge of Indore ac-
quitted all the seven accused who were charged with the
murder of one Sobal Singh. In an appeal by the State, the
High Court while maintaining the acquittal of five of them
viz. Jinnatbai, Gaburia, Ismail, Sardar and Bashir;
reversed it in respect of Sohrab and Nadar, whom he
convicted under Section 302/34 and sentenced each of them to
life imprisonment. They were also convicted under Section
25-A of the Arms Act and each of them was sentenced to
one_year’s rigorous imprisonment. The sentences were
directed to run concurrently. This appeal is by certificate
against the said convictions and sentences.
The prosecution case is that there was a strained
relationship between the accused and the deceased inasmuch
as in December, 1963, one Kudrat, the husband of Jinnatbai,
was murdered and for that murder, Sobal Singh, the deceased,
was prosecuted along with another person, but they were
acquitted. It is alleged that on the morning of 26th
February, 1966 all the seven accused started from the house
of Sohrab. Jinnatbai with her little son and Nadar went in
a chhakda driven by Gaburia. Ismail, Bashir and Sardar were
on bicycles and Sohrab was riding a mare and was carrying
unlicensed-revolver with him. At the time when they left,
it also appears that Jinnatbai handed to Nadar an unlicensed
gun which he kept in the Chhakda. It is further alleged
that shortly before the departure of the accused persons,
Sobal singh left Solsindhi for Sanwer on foot accompanied by
one Chhogia and were closely followed by Madhosingh,
Kishandas, Kana and Bhawarsingh in a Chhakda. Near the
village Maharajganj, the, accused persons were alleged to
have overtaken the two groups of persons and went further
ahead. Then Sohrab turned his mare round and began to chase
Sobalsingh across the fields which lie within the boundaries
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 9
of mouza Ranwer. Chofia however ran away. It is the
prosecution case that in the course of the chase Sohrab
fired at Sobals ingh several times with his revolver and at
one point caught him by the shirt which came off. Sohrab
threw away that shirt and continued to chase the deceased a
little farther after which he dismounted the mare. Just
then Nadar came
474
running with a double-barrelled shot-gun, which he handed to
Sohrab and caught hold of Sobalsingh. Sohrab is then
alleged to have fired the gun at Sobalsingh as a result of
which both Sobalsingh and Nadar fell down. Nadar, however,
got up and thereafter Sohrab again fired at Sobalsingh who
was lying on the ground, face up. Just at that time Bashir
and Sardar came running to the spot and struck Sobalsingh
with knives. It is said that as a result of the cumulative
effect of firing by Sohrab and stabbing by Bashir and
Sardar, Sobalsingh died on the spot, after which Sohrab,
Nadar, Bashir and Sardar went upto the Chhakda, and on
Jinnatbai asking whether the man was dead or alive, she was
told that he had been finished and Kudarat avenged.
Within an hour of the incident, the deceased’s father,
Madhosingh, who himself claims to be an eye witness, made a
report at the police station, Sanwar, which is only a mile
and a half from the scene of the occurrence. After
recording the information an F.I.R. was issued. The police
reached the spot where the body of Sobalsingh was lying and
from that place and the- fields in the vicinity, seized
several articles including used and unused ammunition of
shotgun and revolver, a shirt- and a stirrup with a piece of
its strap which was detached from ’the saddle
The prosecution case was that after the accused persons were
arrested as a result of’ the statement made by- Bashir two
knives were recovered from the trunk of a date palm tree
near the border of villages Bhaori and Deorakhedi; Sohrab is
said to have pointed out a, place also on the border of
those villages, as the place where he is alleged to have
broken up the revolver and the, gun and cut up and burnt the
wooden components of the gun. As a consequence of this
statement,. several articles connected with the firearm Were
recovered. , It was also the case of the prosecution that
divers were employed to. explore the bottom of the river
Kshipra near that place from where the other parts of the
gun were recovered and a number of disjointed and. mutilated
firearm parts, some used and unused cartridges were
recovered. A saddle from which one of the stirrups with a
part of the strap was missing was recovered from the house
of one, Darvesh, the maternal uncle of accused Sohrab. The
strap which is alleged to have been found near the scene of
the occcurrence according to the prosecution case,, matched
with the stirrup and strap found on that saddle. The
payjama of the deceased and the two knives, said to have
been recovered at the instance of accused Bashir, were sent
to the Chemical Examiner and Serologist and according to his
report only on one of the knives blood was found, but it
could not be confirmed as human blood Autopsy,on Sobal
singh’s body showed that he had died of’ internal
haemorrhage and shock resulting, from gunshot wounds and
injuries to vital parts like liver- spleen and lungs-
Accused Nadar was twice operated an and- five bullets were
extracted, throe
475
from the left hand and two from the right. These pellets
were identified to be gun shots. The ballistic experts who
I also examined several articles, said to have been
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 9
recovered at the instance of the accused Sohrab were sought
to be pieced. The shirt which was recovered from the scene
of the, incident which had a hole, was examined by the
expert who was of the opinion that that hole could only be
caused by o.38 revolver. The shots recovered from the body
of the deceased were found to be gun shots and not revolver
bullets. All the accused denied that guilt and in so far as
the appellants are concerned with whose case alone we are
concerned in their statement under Section 342, they do not
say that no such incident took place but that the death of
Sobalsingh was not caused by them. We shall examine their
statement in the, context of the prosecution case as spoken
to by the eye witnesses.
The Sessions Judge found serious infirmities in the
prosecution evidence. The story that Sobalsingh was chased
by Sohrab while riding a horse or that Sohrab had fired
pistol shots and had pulled out Sobalsingh’s shirt during,
the chase was characterised as a pure fabrication. It was
also held that there is no evidence to prove that either the
shirt belongs to Sobalsingh or that the hole in the shirt
which could only be caused by a revolver bullet could not
have been caused by Sohrab because the pieces found in the
body of Sobalsingh were not from the revolver but are
pellets fired from a gun. The evidences of Madhosingh P.W.
1, the father of the deceased and the other witnesses Arjun
P.W. 2, Kishandas P.W. 6, Babulal P.W. 31 were disbelieved.
of the seven incised injuries, most of them were postmortem
wounds as spoken to by Dr. Pawar and at any rate the story
that Bashir and Sardar stabbed Sobalsingh with knives was
not to be believed. The Sessions Judge came to the
conclusion, even though the ballistics expert had not been
asked to give his opinion by reference to the autopsy
report, from at least the first set of injuries found on
Sobalsingh on the abdomen, on the back, and on the
epigastric region that they were not the result of the
deceased having been shot while lying, face up, on the
ground the- pellets came out of the body at a higher level,
then the level at which they had entered the body which
would show that the person who shot should have been at a
considerable lower level than the victim, unless it be that
the latter was bending or the former kneeling; the evidence,
however, shows that the incident happened on even ground and
no one speaks of anybody bending or kneeling, nor can it be
a case where the victim was held by a person other than the
shooter; even the second set of injuries were held not to
have been probably inflicted while the victim was lying on
the ground and assailant was standing; from the pellets ex-
tracted from Nadar’s hands, they could not have been caused
in the manner spoken to by the witnesses; and the story of
firing with the pistol forms such an integral part of the
story of the L1286Sup.CI/72
476
prosecution case as a whole, it would be unsafe to believe,
the witnesses in this regard, whether in respect of pistol
or generally.
The High Court noted that a number of contradictions were
pointed out in the account given by the eye witnesses P.W.
3, P.W. 4, P.W. 5, P.W. 6, P.W. 7 and P.W. 31 and that the
prosecution has not been able to explain the injury which
Nadar had on the palms of his hands which injuries,
according to the High Court, indicated that he was
protecting himself against gun; fire. It is also observed
that the contradictions were not minor as they relate to the
spot of the murder, the fields through which the accused
passed and the manner in which the killing took place.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 9
There is also the question of incompatibility with the
medical evidence regarding the distance from which the gun
was shot and the way it was shot. It was of the view that
the incised wounds were more likely to have been caused
after death and the likelihood of a false story of knives of
the assailant cannot be ruled out. As regards firing of a
pistol, there is absolutely no corroboration and the
evidence was characterised as a myth. The hole in the shirt
could have been only caused by the firing of the pistol and
nothing collected on the spot showed that Sohrab fired a
pistol or he fired a pistol on Sobalsingh. The story of the
pistol was, therefore, discarded. Notwithstanding these
findings, the High Court found that there was unanimity in
the evidence of all the witnesses that Sohrab fired the
fatal shot or shots with a gun given by Nadar. This was
corroborated by the medical evidence which indicates that
the injuries on the deceased- were due to gun shot injuries.
There is also the evidence of the incident having taken
place in a field in which the deceased was found and there
was unanimity on the point that Nadar handed over the gun to
Sohrab and Sohrab fired a shot on Sobalsingh who fell down
after which a second shot was fired. The version of the
accused that the gun shot injuries were caused accidentally,
well not ’believed. The defence story that Nadar was easing
himself when he was attacked all of a sudden after which a
scuffle between Sohrab and Sobalsingh took place resulting
in the accidental firing of the gun was difficult to com-
prehend. The High Court however dealt with the several
contentions urged in respect of the story that Nadar had
handed a gun to Sohrab which he could have easily fired
himself or that Nadar who is said to have caught Sobalsingh
from behind should have been the first to have been injured,
or that the directions of the injury on Sobalsingh indicates
that the firing was from below when Sohrab was at a higher
level, or that the witnesses could not have been seen from
the place where they were or that Sohrab fired at
Sobalsingh, or that he fired it when its barrel was at a
distance of 1 1/2 cubits from Sobalsingh were all discussed,
but they were not considered to throw any doubt on the main
version of the eye
477
witnesses that it was Sohrab who had fired the gun while
Nadar held the, deceased. The conclusions of, the High
Court have been set out as under:--
"The argument that the shooter should have been at a level
lower the the victim and such a state has not been told by
witnesses. Rather the story clearly excludes such a
possibility has no doubt some merit if we accept the story
of the prosecution witnesses as told by them. We do not
fully accept the same. In fact they saw the incident from a
distance and the detailed descriptions are all inferences as
even admitted by one of them. A man running for life and a
mare following would be away quite far from the witnesses.
Number of fields mentioned by the witnesses intervened the
witnesses and the spot. In fact it has been a point taken
up by the defence that on account of the distance they could
not see. What we feel is they could see that broad facts.
Sohrab’s running on a mare, broad and easily visible actions
that one could see, from a distance. The rest of the
details are imaginations and inferences Nadar’s injuries on
his palms cannot be explained strictly on the basis of the
prosecution version; but as we have seen the details are un-
believable we can only say the witnesses could not see how
the injuries on Nadar’s palms were received. They were
received undoubtedly on the spot, and when gun was fired.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 9
Sobalsingh was no doubt held or appeared to have been held
by Nadar from a distance. He must have tried to move. That
movement was responsible for injury to his palms. The
unassailable story therefore remains is that Sohrab fired a
gun at sobalsingh and Nadar handed over the
gun to him. Both of them are therefore
guilty."
In the above view it was held that both Sohrab and Nadar
were guilty of an offence of murder under Section 302 read
with 34.
We have at some length pointed out that the Sessions Judge
and the High Court were in agreement on certain aspects of
the case in respect of which witnesses tried to embellish
and exaggerate. But that, by itself, in our view, does not
assist the accused, nor can the broad features of the
evidence of the prosecution case be doubted in respect of
the version that on the day of the occurrence both the
appellants and the deceased were in the field where the dead
body was found, that Sohrab was riding a mare that he chased
the deceased, that Nadar came with a gun and handed it over
to Sohrab and that Sohrab fired at the deceased, which also
caused injury to Nadar. The position of the eye witnesses
in relation to the occurrence may have been such that all
the details could not have been noticed, but that the
salient features of the
478
prosecution story was- true is established by the evidence
of the eye witnesses. It appears to us: that merely because
there have been discrepancies and contradictions in the
evidence of some or all of the witnesses does not mean,
that, the entire evidence of the prosecution has to be
discarded. It is only after exercising caution and care and
sifting the evidence to separate the truth from untruth,
exaggeration, embellishments and improvement, the Court
comes. to the conclusion that what can be accepted
implicates the appellants it will convict them. This Court
has held that faksus in uno falsus in ownibus is not a sound
rule for the reason that hardly one comes across a witness
whose evidence does not contain a grain of untruth or at any
rate exaggeration, embroideries or embellishments. In most
cases, the witnesses when asked about details venture to
give some answer, not necessarily true or relevant for fear
that their evidence may not be accepted in respect of the
main incident which the have witnessed but that is not to
say that their evidence as to the salient features of the
case after cautious scrutiny cannot be considered though
where the substratum of the prosecution case or material
part of the evidence is disbelievable it will not ’be
permissible for the Court to reconstruct a story of its own
out of the rest. It is also urged that in an appeal against
acquittal, the Appellate Court must consider the reasons
which impelled the Trial Court to acquit the accused but
whereas in this case the High Court having agreed with most
of the conclusion-% arrived at by the Sessions Judge it
could not reverse the order of acquittal. The Privy Council
case in Sheo Swarup and Ors. v. King Emperor(1) and the
judgment of this Court adopting the view enunciated therein
have been referred to us. It is now well established that
under Sections 417, 418 and 423 of the Code of Criminal
Procedure, the High Court has full power to review at large
the evidence unon which the order of acquittal was founded
and to reach the, conclusion that upon that evidence the
order of acquittal should be reversed. No limitation should
be placed upon that power unless it be found expressly
stated in the Code. But in exercising the power conferred
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 9
by the Code and before reaching its conclusions upon fact,
the High Court should and will always give proper weight and
consideration to such matters as (1) the views of the trial
Judge as to the credibility of the witnesses; (2) the
presumption of innocence in favour of the accused, a
presumption certainly not weakened by the fact that he has
been’ acquitted at his trial; (3) the right of the accused
to the benefit of any doubt; and (4) the slowness of an
appellate Court in disturbing a finding of fact arrived at
by a Judge who had the advantage of seeing the witnesses.
This principle was adopted in Sanwant Singh v. State of
Rajasthan(2); in Agarwal v. State of Maharashtra(3) and it
was pointed out that the different phraseology used
(1) A.I.R. 1934 P.C. 227. (3) [1963]2 S.C.R. 405. (2)
[1961] 3 S.C.R. 120.
479
in the earlier judgment of this Court such as "substantial
and compelling reasons", "good and sufficiently cogent
reasons" and strong reasons" are not intended to curtail the
powers of the .Appellate Court in an appeal against the
acquittal to review the entire evidence and to come to its
own conclusion but in doing so it should not only consider
every matter on record having a bearing on the questions of
fact and the reasons given by the Court below in support of
its order of acquittal in arriving at a conclusion on those
facts but should express the reasons in its judgment, which
led it to hold that the acquittal was not justified. In
those cases it was pointed out by this Court that the
principles laid down by the Judicial Committee in Sheo
Swarup case afford a correct guide of the court’s approach
to a case disposing of such appeal. We have in this case
shown earlier the ]High Court did consider all aspects
considered by the Sessions Court with most of which it also
concurred. It, however, dealt with some of the aspects in
which Sessions Court had not given a clear cut finding and
in fact that Court had lost itself in a maize of
contradictions and omitted to consider the overwhelming
evidence that Sohrab had fired the fatal shot at Sobalsingh
with the gun given by Nadar. Both Sessions Court as well as
the High Court rejected the story of Nadar that he was
urinating when he received the injuries and ,both of them
further rejected the story that the gun went off in the
struggle. Once the Sessions Judge had rejected the defence
story, he should have considered the evidence of the
prosecution that Sohrab had fired the gun given by Nadar and
fired it at Sobalsingh but if it did not accept that story,
it could have given a reason for not doing so. But as we
said earlier it was overwhelmed by the various
contradictions and failed to consider what effect it had on
unanimous version of the prosecution witnesses that Nadar
had given the gun to Sohrab and Sohrab had fired with it at
Sobalsingh. Within an hour of the incident, an F.I.R. was
lodged in which the main story as spoken to by the witness
was given. In it the informant, Mahadeo had stated is
follows
"I saw that Sohrab caught Sobal on the, boundary line of the
field of Chensingh and Nadar came with a gun from. the side,
of the cart. I.Bashir and Sardar came there running from
the side of the cart road’ and reached there. Nadar gave
the ’gun to Sohrab and caught Sobal and Sohrab fired at the
back of Sobal. As a result of which Sobal fell down and he
made another fire at him while fallen. Sardar and Bashir
struck blows with knives having knelt on Sobal to kill him
while fallen. After this Soharab got on his mare and went
with Nadar, Bashir and Sardar to the place Where
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 9
480
the cart of the wife of Kudarat was parked and from there
they went towards Panod."
Though in so far as the part played by Sardar and Bashir as
stated therein has not been accepted with respect to the
other part the evidence of the eye witnesses fully agrees
with the verison given in the F.I.R. The salient feature of
the evidence of the prosecution case are not really denied
by the appellants Soharab and Nadar, Soharab admitted that
they had started at 7 A.M. to attend the Court, that he was
on the mare, that Nadar, his sisterin-law, servant Gabbu and
one child were going in a cart, that they had a dispute with
Chhogya Chamar and he was going ahead of them, and that the
cart was behind him. The prosecution witnesses have also
deposed to these facts. What the accused Sohrab says
thereafter is that he had heard the sound of the firing of
the gun. He got down from the mare and saw, in the meantime
one more fire was shot. He saw that Nadar was running away
towards North and Sobalsingh was following him. He got to
him on the mare. At that time Sobalsingh was filling a
cartridge in the gun. He jumped off from the mare and
caught hold of the gun. Sobalsingh caught the gun from the
side of the barrel and tried to get hold of him. While
Sobalsingh and he were both trying to catch hold of the gun,
the gun fired and Sobalsingh fell down. We find the
following narration by Sohrab thereafter to be significant.
He says :
"I dropped the gun. As it fell down again fired. Blood was
coming out of the hands of Nadar. I went to Kadava being
afraid where I have relatives. I told Nadar to go and make
a report at the Police Stations. I got myself relieved of
the fear and then after twothree days I myself went to the
Police Station."
This statement shows that the gun was in his hands and it is
only after that two shots emanated from it. of course,
according to the accused version, it went off when
Sobalsingh and he were struggling with it and again when he
dropped it. That Nadar was injured as a result of that gun
shot was also not denied. How-ever, when Nadar was running
away, he was injured on the palms is not denied.
Nadar in his statement also admits that on the day of the
occurrence Gabbu, his sister-in-law and he was going to
attend the dated fixed in the case of Chhogya Chamar at
Sawer, that Sohrab had started on a mare before them, that
their cart came ahead of Maharajganj, that behind the cart
at some distance Sobalsingh and Chhogya were coming, that
Sobalsingh had a
481
gun in his hands, and that he (Nadar) got down from the cart
and sat for urine in a field at some distance. At once a
gun was fired. It struck on his hands, and he lay down
facing the sky. One more fire was shot but it did not
strike him. He got up and ran and cried out "save, save’.
Sobalsingh came behind him. He ran and went towards the
cart. Having sat in a cart he came to Sawer with his
sister-in-law and from there he sent her to Khajrana by a
motor bus, and went to the Police Station to lodge a report.
There the Sub-Inspector gave him beatings and did not record
his report. Now, according to the version of this accused,
the very first shot had injured his hands and he lay down
facing the sky. But according to the version given by
Sohrab after he heard the fire from the gun, he saw that
Nadar was running away towards the north, but this is not
spoken to by Nadar, who says he fell down with his face
upward. The second shot according to Sohrab was the one
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 9
which went off in the struggle and the third shot was the
one which went off when he dropped the gun and it was then
that he saw blood was coming from the hands of Nadar. The
statements of these two accused, as we have said earlier,
lend further credence to the evidence of the prosecution
that the incident took place as alleged in the field where
Nadar and Sobalsingh were present, that there was a fire
from the gun as a result of that fire and the subsequent
one, Sobalsingh died. That the shot was fired when the gun
was in the hands of Sohrab, is spoken to by all the
witnesses and the High Court is justified in coming to the
conclusion that Sohrab had fired it deliberately at
Sobalsingh. The version of the accused Sohrab also lends
support to it. The actual fatal shot was fired when the gun
was in the hands of Sohrab as a result of scuffle or
deliberately and the second shot also occurred when the gun
was in the hands of Sohrab, whether it was fired on it being
dropped or deliberately as spoken to by the witnesses. As
we stated earlier both the Sessions Judge as well as the
High Court have disbelieved that the firing of the gun was
accidental as a result of which Sobalsingh was killed. In
our view, the defence version does not fit in with the
postmortem report or.the evidence of the Doctor who
conducted it. Even on the statement of the accused the
theory that the shooter was at a lower level of the victim
or the victim was kneeling is not borne out by anything in
the medical evidence. Injury number (1) is sought to be
linked with injury (xi) by pointing out that the
482
latter is an entry wound and the formerexhibit wound
of that entry wound. It has not been pointed out to us nor
could we find any justification for this assumption from the
doctor’s evidence. All that was said is that one was an
entry wound and ing was spoken to in this regard. In these
circumstances in what the other exhit but that does not mean
that the exhit wound (i) is that of the entry wound (xi).
No probe was made and noth position the gun was fired or in
what position asailant and the victim were poised, it is
difficult to determine from the evidence.
In this view, we confirm the judgment of the High Court and
dismiss the appeal.
V.P.S.
Appeal dismissed.
483