Important Point
Though oral testimony has to get preference over the medical opinion, yet when the latter totally improbabilises a witness’s oral testimony, same is a relevant factor.

JUDGMENT

Dr. ARIJIT PASAYAT, J.—

1.The order of acquittal passed by a Division Bench of the Allahabad High Court is the subject matter of challenge in this appeal. Before the High Court the respondent had challenged the correctness of the judgment and order dated 24.5.1980 passed by the then IX Additional Sessions Judge, Kanpur, convicting him for an offence punishable under Section 302 of the Indian Penal Code, 1860 (in short the ‘IPC’) and sentencing him for imprisonment for life.

2.Prosecution version in a nutshell is as follows :

3.The deceased in this case was Mohammed Anwar. He was in love with the younger sister of the accused Mushtaq Alam and both of them wanted to marry each other, which move was being opposed by the accused and his family members. On this issue the accused even harassed and used to beat her sister, consequently she committed suicide. Accused Mushtaq Alam became inimical to the deceased as he thought that it was on account of him that his sister ended her life.

4.On 18.8.1979 at about 11.00 p.m. the deceased was coming back home from Halim College crossing alongwith Shakir (PW-1). When they were in front of Jay Bharat Washing Company, accused-appellant appeared there with a country made pistol in his hand and fired a single shot on the back of the deceased, who on being hit, fell down on the ground. The incident was witnessed by Shakir (P.W.1) in the electric light emanating from the neighbouring houses. The cries of the deceased and Shakir (P.W.1) attracted to the scene of occurrence Ghulam Mustafa (PW-4) and Mohammed Jamil, who saw the accused running away from the scene of occurrence. Similarly, constable Amar Singh (PW 7) also reached the spot on hearing shouts for help.

5.Shakir (P.W.1) got the First Information Report (Ex.Ka.1) scribed by Mohammed Hasan and lodged the same on that night at 11.40 P.M. at police station Raipurwa. Head constable Deena Nath (P.W.2) prepared check report and registered the case under Section 307 I.P.C. After receiving information of the death of Mohammed Anwar the case was converted to under Section 302 I.P.C. Sub-Inspector Ramyagya Singh (P.W.6) was the Investigating Officer who rushed to the spot after registration of the case but did nothing in the night and collected blood from the scene of occurrence in the morning of 19.8.1979. He also made an inspection of the scene of incident and prepared site plan (Exb.Ka.12). The witnesses were also interrogated. On transfer of Inspector Ramyagya Singh, Sub-Inspector O.P. Mishra (P.W.8) took up the investigation and he submitted charge sheet against the accused.

6.After the completion of investigation, charge sheet was placed and in view of the denial of the accusations trial was held. At the trial, 8 witnesses were examined. PW-1 claimed to be an eye-witness and PW-4 claimed to have arrived at the spot immediately after the occurrence. The trial court found the evidence of PWs 1, 4 and 7 to be credible and cogent and, therefore, recorded conviction and imposed sentence as noted above.

7.Before the High Court the stand of the accused was that the evidence of PWs 1, 4 and 7 does not inspire confidence and the presence of the so-called eye-witness and that of PW-4, PW 7 appear to be totally without any truth and the prosecution version is rendered unacceptable in view of the medical evidence.

8.The State’s stand, on the other, hand is that the evidence has been analysed in great detail by the trial Court and, therefore, the High Court should not have accepted the stand of the accused.

9.The High Court, as noted above, directed acquittal doubting credibility of prosecution version.

10.In support of the appeal, learned counsel for the appellant submitted that the High Court should not have discarded the evidence of PWs 1, 4 and 7. There is no infirmity in their evidence to warrant interference.

11.Learned counsel for the accused-respondent on the other hand supported the judgment of acquittal passed by the High Court.

12.The High Cou