Medical and ocular evidence

Allegations against the accused were that he along with his co-accused duly armed with daggers in furtherance of their common intention stabbed dagger blows to deceased and committed his murder

Medical evidence showed that 23 injuries were caused to the deceased whereas as per "danishtnama" 18 injuries were found on the body of deceased

Such contradiction was fatal to the prosecution case

Appeal against acquittal was dismissed, in circumstances.

Specific allegation was levelled against the accused that he sicced his dog on the complainant which nipped his right leg near the ankle

Prosecution witnesses had got recorded their statements under S. 161, Cr.P.C., in support of the prosecution case and, according to them, incident was not an accident

Medical evidence had corroborated the ocular account and the doctor had declared the injuries sustained by the complainant as ghyr jaifah damiyhah and ghyr jaifah mutalahimah which attracted Ss. 337-F(i) and 337-F(iii) of P.P.C. respectively

Offence under the last mentioned provision was non-bailable

Tentative assessment of the available evidence and consideration of the facts revealed that there was also previous rivalry between accused and the complainant, as such, S.289, P.P.C., did not apply

Negligence which was the foundational element for that provision was missing

Application for grant of pre-arrest bail was dismissed, in circumstances.

Medical Officer fully supported the eye-witness/prosecution evidence as he confirmed that the deceased was brought dead to the hospital by a sharp cutting substance (churri) and some by biting which led to his death as deposed by the eye-witnesses

Post mortem was carried out with promptitude which would rule out the cooking up of any false case

Circumstances established that the prosecution had proved its case against the accused beyond a reasonable doubt

Appeal against conviction was dismissed accordingly.

Record showed that the medical evidence was in conflict with the ocular evidence and the seat of injuries hardly explained that they were caused by using firearms, i.e. Kalashnikov and pistols

Medical Officer who examined the deceased appeared before the court and stated that he noticed thirteen injuries on the dead body of the deceased

Said witness further stated that all the injuries sustained by the deceased were pallet injuries

Injuries were one cm in diameter and such injuries could be caused due to .12 bore shotgun

On the other hand, when eyewitnesses appeared before the court, they stated that the accused persons were equipped with Kalashnikov and pistols and they made firing upon the deceased

None of the witnesses stated that any of the accused was armed with .12 bore shotgun

Investigating Officer recovered eight bullet empties of Kalashnikov and nine bullets empties of .30 bore T.T pistol from the place of occurrence

No empties of a .12 bore shotgun were taken into possession by the investigating Officer from the place of occurrence

Said shortcomings led to anomaly between medical and ocular evidence, which could legitimately be resolved in favour of the defence

Circumstances established that the prosecution had failed to point out any defect in the impugned judgment passed by the Trial Court

Appeal being devoid of merits was accordingly dismissed.

Site plan was prepared at the instance of the complainant where the deceased and the assailants were shown at a distance of three paces from each other

Fact could not be ignored that the weapon used was stated to be 9mm pistol and that the charring and blackening marks occurred only when a pistol was fired from a distance of nine inches or less

In the present case all the entry wounds were surrounded by blackening, which was not possible from the distance given by the complainant, which also indicated that the complainant was not present at the time of incident

Said conflict between the medical evidence and ocular account had crept deep into the roots of the prosecution case

Medical evidence though was confirmatory in nature but when direct ocular account was available on file, then in that eventuality it was the ocular account which was to be preferred and taken into consideration, provided it was confidence inspiring, however, in the present case, the presence of the witnesses at the time and at the place of incident was shrouded in mystery, so the conflict between the two could not be ignored and it was for the prosecution to prove otherwise

Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt

Appeal against acquittal was dismissed, in circumstances.

In the present case, the medical evidence produced by the prosecution proved that the deceased had received injuries with a blunt weapon on the vital part of his body and he succumbed to the said injuries

Medical evidence fully supported the ocular account

Probable time between death and post-mortem as noted by the doctor coincided with the ocular account

Post-mortem examination of the dead body of deceased had been conducted quite promptly leaving no room for deliberations or fabrication of a story

Appeal was dismissed with modification in sentence.

Qatl-i-amd, attempt to commit qatl-i-amd, robbery or dacoity with attempt to cause death or grievous hurt, rash or negligent act, common intention

Appreciation of evidence

Medical and ocular evidence

Contradiction

Scope

Accused was charged for committing murder of brother of the complainant by way of firing during robbery

Medico Legal Certificate revealed that the deceased was brought to hospital at 7:35 p.m., while the remaining witnesses did not support the version of Medical Officer

Prosecution witness had stated that they reached the hospital at 8:30 p.m., thereafter police reached, while according to other witness, he remained at the place of occurrence till 8:00 p.m. when the police reached there and had taken into possession the shirt of deceased at the spot

Said witness further replied that he reached the hospital at 8:30 p.m. but contrary to the above, the complainant during cross-examination stated that they remained at the spot from 5:30 to 9:30 p.m. and the police reached at the spot at about 8:50 p.m.

Complainant during examination stated that he gave the application to the police at hospital at about 9:30 p.m. and later on he signed the said application in the police station

Testimonies of the prosecution in respect of exact time of occurrence were lacking certainty because when the complainant remained at the spot at 9:30 p.m. with the corpse then at 7:35 p.m. who was examined by the Medico Legal Officer and whose blood-stained clothes were taken into possession by the Investigating Officer when at that time the corpse was lying at the spot

Investigating Officer visited the site along with complainant but he did not take into possession the deceased's motorcycle which was the main cause/ reason of the incident

Circumstances established that medical evidence did not support the ocular account

Appeal was allowed and accused was acquitted by setting aside conviction and sentence recorded by the Trial Court, in circumstances.

Prosecution case was that accused made firing upon the borther and cousin of complainant, resultantly, brother of complainant received bullet injuries, who died on the spot while his cousin survived

In the present case, medical certificate was contradictory with ocular evidence

Medical Officer produced the medical certificate of the deceased according to which the weapon used was "hard and blunt", however it was also mentioned that there was "arm injuries", which created reasonable doubt in prosecution case

Appeal was allowed and accused was acquitted by setting aside conviction and sentence recorded by the Trial Court, in circumstances.

Accused was charged for committing murder of the husband of complainant by firing while he was reciting Holy Quran in the mosque

Record showed that the medical evidence was in conflict with the ocular account

If the statement of the complainant was taken to be correct, the entry wounds should have been from the back

Keeping in view the distance as per medical jurisprudence a 12 bore shotgun caused an entry wound from 12 feet as 5×8 inches, and the pellets would enter separately

Medical Officer had given the dimension 1"×1" which could not be caused from such a long distance

Appeal against conviction was allowed, in circumstances.

Statement of Lady Medical Officer showed that on 17.09.2010 at 3.30 p.m. the post-mortem examination of the dead body of the deceased was conducted

Lady Medical Officer stated that according to her opinion, the probable time that elapsed between the injury and death was immediate, whereas the probable time that elapsed between the death and post-mortem examination was 7 to 8 hours

As postmortem examination was conducted on 17.09.2010 at 3.30 p.m. therefore, according to the evidence of Lady Medical Officer, deceased, would have died approximately between 7.00 a.m. to 8.00 am on 17.09.2010

Even complainant and witness while appearing in the witness box had categorically stated that they heard the news regarding the death of deceased at about 3.30 a.m. (night)

Time of death of deceased given by the prosecution witnesses did not coincide with the time of death of deceased as given by the Lady Medical Officer and as such there was conflict between the ocular account and the medical evidence

Appeal against conviction was allowed, in circumstances.

Only one injury on the chest of deceased was mentioned in the application and FIR but during autopsy two injuries were found, therefore, ocular account was contradicted qua number of injuries by medical evidence

Circumstances established that ocular account was neither trustworthy nor confidence inspiring, hence, same was not reliable

Appeal was allowed and accused was acquitted by setting aside conviction and sentence recorded by the Trial Court, in circumstances.

No injury was seen on the neck and the cause of death was in fact head injury resulting from hard and blunt substance which indicated that the deceased was not strangled as alleged by the prosecution

Time between death and post-mortem was seven to ten days which meant that the deceased would not have died on the day he was abducted as per confession of the co-accused before the police and might have died at least a day or two after the last seen evidence

Prosecution could not conclusively prove that the deceased was killed shortly after the alleged last seen evidence.

Record showed that eye-witness of the incident, who was serving in Police department and on the day of incident he was on duty under entry in relevant record and claimed to have left the police station for breakfast and went to market to purchase some articles along with deceased but no any such entry to leave the police station was available in record

Evidence of said witness showed that he was riding on motorcycle along with deceased, who was driving the motorcycle

Said witness also stated that deceased received bullet injury on chest, which as per prosecution case was through-and-through but admittedly said witness had not received any scratch

Said eye-witness had stated that blood started oozing from injury of deceased and he took the injured in Rickshaw for hospital but even then no blood stain was found on his clothes

Despite direct firing as well as fall of motorcycle due to fires, neither witness received any injury/scratch nor motorcycle was damaged

Said witness had further stated that deceased succumbed to injuries in the hospital but post-mortem report showed instant death

Version given by complainant in FIR and statement under S. 161, Cr.P.C. that accused made fires from motorcycle while coming on right side of the deceased, was contradicted by medical evidence because no injury on right upper chest could be received from right side

Other witness in his statement recorded under S. 162, Cr.P.C. had stated that accused murdered the deceased in his presence

Said witness before the Trial Court had stated that he did not know about the facts of the case

Said witness volunteered that no such incident took place in his presence and he had given his statement without any fear and force

Said prosecution witness neither had been declared as hostile nor he had been cross-examined by the defence

Said witness had further stated that after the incident he informed the complainant on mobile phone, whereas complainant in FIR as well as in his examination-in-chief had stated that his son-in-law/eye-witness had informed him about the incident on mobile phone

Circumstances established that the case of the prosecution was based upon the contradictory evidence and the impugned judgments passed by the Trial Court were legal, proper and based upon sound reasons

Neither, there was any misreading, nor non-reading of material evidence or misconstruction of facts and law

Appeals against acquittal being devoid of any force and consideration were dismissed.

Prosecution case was that accused called deceased out of his house; altercation took place; co-accused persons emerged with firearms and killed the deceased in front of complainant and other witnesses

Witnesses appeared in the Trial Court and narrated the story as contained in the FIR by mentioning the date and time of occurrence

Witnesses in the examination-in-chief had mentioned the name of assailants, but failed to identify appellants as assailants

Complainant and alleged eye-witnesses had not mentioned the nature of firearms in the hand of assailants

No recovery of firearm had been effected from the possession of appellants

Medical evidence was not sufficient to connect the appellants with the crime in question for the reason that through such type of evidence the unnatural death could be established, but it did not identify the culprits

Appeal was allowed and accused were acquitted, in circumstances, by setting aside their convictions and sentences recorded by the Trial Court.

Complainant and witness had stated that one of the accused persons had fired at the deceased which hit on his right shoulder and other accused fired on the right upper arm of deceased

Injury on the right arm of deceased was an exit wound

Injury on the lateral wall of the chest was not attributed to any of the accused persons

Prosecution case was contrary to medical evidence

Appeal was allowed, in circumstances.

Held; had such being the position blackening would have been observed at the time of post-mortem on the body of deceased

Doctor did not observe any blackening during post-mortem

Appeal was allowed, in circumstances.

Complainant had stated before investigating officer that the fire shot hit the deceased on the right side of the temporal region whereas while appearing as witness he had not mentioned as to where the fire shot hit the deceased

Second eye-witness had also improved his version in the same way and had not mentioned any side where the alleged fire shot hit the deceased

Doctor had observed the wound on the left side of the head and not on the right

Held; improvements in the statements of witnesses were not only dishonest but were proved to be incorrect.

Doctor, who conducted post-mortem examination of the deceased, stated that the cause of death was hemorrhage and shock due to injuries caused by sharp edged weapon

Appeals were allowed and the convictions and sentences of the appellants were set aside.

During medical examination, no firearm injury to complainant was found rather an incised wound at the back of left leg of complainant was observed having been caused with sharp edged weapon

Effect

Pre-arrest bail could be granted to accused if his case was found to be of further inquiry, as no useful purpose would be served in sending accused behind bars for a few days

Pre-arrest bail was confirmed in circumstances.

Medical report did not coincide with version of complainant and it did not show if any of the deceased sustained injury with sharp cutting weapon

Both deceased besides fire arm injuries had injuries of hard blunt substance, which might have been caused with butt of pistols

Medical evidence was in clear contradiction with ocular evidence to the extent of role assigned to both the accused as well as those who were acquitted

Prosecution case was not strong enough against both the accused and prosecution failed to prove its case beyond shadow of reasonable doubt against them

Each and every case was to be decided on its own peculiar facts and circumstances

High Court set aside conviction and sentence awarded by Trial Court and both the accused were acquitted of the charge

Appeal was allowed accordingly.