2008 Supreme(SC) 1116

2008(5) Supreme 329
Supreme Court of india
Dr. Arijit Pasayat and Dr. Mukundakam Sharma, JJ.
Suraj Singh — Petitioner
versus
State of U.P. — Respondent
Criminal Appeal No. 1072 of 2004
Decided on : 24-07-08

Important PointS
1.In an appeal against acquittal, the High Court has full powers to review and to reverse acquittal.
2.The discrepancy in ocular and medical evidence vis-a- vis distance cannot affect credibility of evidence.

Headnote:Indian Penal Code, 1860 – Section 302 read with Section 34 – Prosecution of accused appellant and his wife for causing death of deceased by firing shots from gun and revolver – Trial Court directed acquittal of appellant primarily on ground that there was discrepancy between ocular evidence and medical evidence and that independent witnesses were not examined – On appeal filed by State, High Court held that while acquittal of A-2 was correct, same was not sustainable so far as appellant was concerned – Appeal –Plea of appellant that High Court had not kept in view parameters of an appeal against acquittal that when two views are possible on basis of evidence on record and one favourable to accused is taken by trial Court, same should not be disturbed – Held in an appeal against acquittal, High Court has full powers to review and to reverse acquittal – Again it was held erroneous to accord undue primacy to hypothetical answers of medical witnesses to exclude eyewitnesses’ account which had to be tested independently and not treated as “variable” keeping medical evidence as “constant” – It is trite that where eyewitnesses’ account is found credible and trustworthy, medical opinion pointing to alternative possibilities is not accepted as conclusive-Eyewitnesses’ account would require a careful independent assessment and evaluation for its credibility which should not be adversely prejudged making any other evidence, including medical evidence, as sole touchstone for test of such credibility – Instantly, trial Court erroneously concluded that medical evidence was at variance with ocular evidence – Oral testimony was not at variance with medical evidence – The discrepancy in ocular and medical evidence vis-a- vis distance cannot affect credibility of evidence – When there is direct evidence of eye witness available inconsistency relating to distance from which gunshots were fired is of no consequence when the prosecution evidence pertaining to assault by guns and pistol substantially tallied with medical evidence – No discrepancy pointed out in evidence of eye witnesses – Appeal having no merit dismissed. (Paras 40 to 43)

       Code of Criminal Procedure, 1973 – Section 378 – Appeal in case of acquittal- An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded- Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law. (Paras 34)

       Facts of the Case :

       1.Accused appellant and his wife were prosecuted herein in the instant case for causing death of deceased by firing shots from gun and revolver. Trial Court directed acquittal of appellant primarily on ground that there was discrepancy between ocular evidence and medical evidence and that independent witnesses were not examined. On appeal filed by State, High Court held that while acquittal of A-2 was correct, same was not sustainable so far as appellant was concerned.

       2.Present appeal has been filed against said order of High Court.

       Findings of the Court :

       In an appeal against acquittal, High Court has full powers to review and to reverse acquittal. An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded. Again it was held erroneous to accord undue primacy to hypothetical answers of medical witnesses to exclude eyewitnesses’ account which had to be tested independently and not treated as “variable” keeping medical evidence as “constant”. Instantly, trial Court erroneously concluded that medical evidence was at variance with ocular evidence. Oral testimony was not at variance with medical evidence. The discrepancy in ocular and medical evidence vis-a- vis distance cannot affect credibility of evidence. When there is direct evidence of eye witness available inconsistency relating to distance from which gunshots were fired is of no consequence when the prosecution evidence pertaining to assault by guns and pistol substantially tallied with medical evidence. No discrepancy pointed out in evidence of eye witnesses. Merely because PW-1 and PW-2 were close relatives of deceased, that cannot be a ground to affect credibility of their evidence. Appeal having no merit was dismissed.

       Result : Appeal dismissed.