# SOHRAB S/0 BELi NAYATA & ANR v. THE STATE OF MADHYA PRADESH

- **Citation:** [1973] 1 S.C.R. 472
- **Court:** Supreme Court of India
- **Decided:** 1972-05-02
- **Bench:** P. Jaganmohan Reddy, G. K. Mitter
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/sohrab-s-0-beli-nayata-anr-v-the-state-of-madhya-pradesh-5681
- **Pages:** 11

## Headnote

Practice and Procedure-Power of High
Cour~ in
appeal
against
.acauittal.
In an
app1~al against acquittal, the High Court, while maintaining
the . acquittal of some of the accused, reversed it in respect of the appellants and comcicted 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 t>oversed.
But in exercising this power
A
B
c
the High Cou'rt should give proper weight
and· consideration to such
matters as, (a) The views of the trial judy,e as to too credibility of the
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witnesses; (b) the presumption of innooonce. in favour of the accused,
a presumption certainly not weakened by t~ fact that he has been acquitted at the trial; ( c) the right of the accused to the heir.fit 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 advantag,e 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
expPoSS
its
weasons in its judgment which led it to hold that the acquittal was not
"justified. [478 E,--H; 479 A-CJ
In the present case, the High Court did co~sider all the aspects considered by the Se:sions Court, with most of which it has also concurred
especially those aspects of the case in respect of which witnesses tried
to embellish and o0xaggerate.
Bu! that by it.self, 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 l>ocause 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 prosecution had
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·to be discarded., It was only after exercising caution and
care and
•ifting 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
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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 acros.s. a
witness whose evidence does not contain a grain of untruth or at anv rate
iome exaggeration or embellishment. Where, however, the substratum of th.~
prosecution case, or a material part of the evidence, cou]d not be believed. it 'would not be permissible for the Court to reconstruct a storv
of its own out of the rest. [477 G-H; 478 A-Dl
·
H
Sheo Swarup and 0'5. v. King Emveror. A.LR. 1934 P.C. 227;
Sanwi;nt Singh v. State of Ra;a,than, [1961] 3 C.C.R. 120 and Agarwal v. State of Maharashtra, [1963] 2 S.C.R. 405, referred to.
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SOl!RAf v. STATE (Jagan.nahan Reddy, J.)
473
CRIMIN\,. '\PPFLLATE JURISDICTION: Criminal Appeal NJ.
l·lO of J 9i,9.
1\;)peal by special leave from the judgment and ordc·r dated
Augc:st 5, 1969 of the :ll'adhya Pradesh High Court, Indor Bench
in Criminal Appeal No. 26 of 1967,
Frank Anthony, F. C. Chandi, A. T. M. Sampat, E. C. Agarwal a and K. C. _J1_garwala, for tlie appellants.
I. N. Shroff, for the respondent.

## Text

472
SOHRAB S/0 BELi NAYATA & ANR.
V.
THE STATE OF MADHYA PRADESH
May 2, 1972
[P. JAGANMOHAN REDDY AND G. K. MITTER, JJ.]
Practice and Procedure-Power of High
Cour~ in
appeal
against
.acauittal.
In an
app1~al against acquittal, the High Court, while maintaining
the . acquittal of some of the accused, reversed it in respect of the appellants and comcicted 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 t>oversed.
But in exercising this power
A
B
c
the High Cou'rt should give proper weight
and· consideration to such
matters as, (a) The views of the trial judy,e as to too credibility of the
D
witnesses; (b) the presumption of innooonce. in favour of the accused,
a presumption certainly not weakened by t~ fact that he has been acquitted at the trial; ( c) the right of the accused to the heir.fit 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 advantag,e 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
expPoSS
its
weasons in its judgment which led it to hold that the acquittal was not
"justified. [478 E,--H; 479 A-CJ
In the present case, the High Court did co~sider all the aspects considered by the Se:sions Court, with most of which it has also concurred
especially those aspects of the case in respect of which witnesses tried
to embellish and o0xaggerate.
Bu! that by it.self, 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 l>ocause 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 prosecution had
E
F
·to be discarded., It was only after exercising caution and
care and
•ifting 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
G
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 acros.s. a
witness whose evidence does not contain a grain of untruth or at anv rate
iome exaggeration or embellishment. Where, however, the substratum of th.~
prosecution case, or a material part of the evidence, cou]d not be believed. it 'would not be permissible for the Court to reconstruct a storv
of its own out of the rest. [477 G-H; 478 A-Dl
·
H
Sheo Swarup and 0'5. v. King Emveror. A.LR. 1934 P.C. 227;
Sanwi;nt Singh v. State of Ra;a,than, [1961] 3 C.C.R. 120 and Agarwal v. State of Maharashtra, [1963] 2 S.C.R. 405, referred to.
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SOl!RAf v. STATE (Jagan.nahan Reddy, J.)
473
CRIMIN\,. '\PPFLLATE JURISDICTION: Criminal Appeal NJ.
l·lO of J 9i,9.
1\;)peal by special leave from the judgment and ordc·r dated
Augc:st 5, 1969 of the :ll'adhya Pradesh High Court, Indor Bench
in Criminal Appeal No. 26 of 1967,
Frank Anthony, F. C. Chandi, A. T. M. Sampat, E. C. Agarwal a and K. C. _J1_garwala, for tlie appellants.
I. N. Shroff, for the respondent.
The Judgment of the Court was delivered by
P. Jaganmohan Reddy, J. The Sessions Judge of Indore acquitted 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.
Thev were also convicted under Section 25-A of the Arms Act and each of them was
sentenced to one. _vear's rigorous imprisonment.
The sentences
were directed to run concurrently.
This appeal is by certificate
against the said convict_ions and sentences.
The prosecution c.ase 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.
Jinnatbal with her little son
and Nadar went in a chhakda driven by Gaburia. Ismail, Bashir
and Sardar were on bifycles 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 Chhakcia.
It is further alleged that
shortly before the'departure of the accused persons, Soba!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 of mouza Ranwer. Chofia however ran
away.
It is the prosecution case that in the course of the chase
Sohrab fired at Sobalsingh 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
SUPREME COURT REPORTS
[1973] l S.C R.
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 gul) at Sgbalsingh as a result of which both Sobab
singh and Nadar fell do~n. 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 struc~ Sobalsingh with knives. It is said that as a result
of the cumulative effect of firing by Sohrab and stabbing by Rashir
and Sardar, Sobalsingh died on the spot,
after which Sohrab,
Nadar, Bashir and Sardar went upto the Chhakd:i, 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 recqrding the information an
F.l.R. was· issued.
The police reached the spot ·where the body
of Sobalsingh was !yin g 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 s.taiement made by ·Bashir two knives
were recovered from the frunk of a date palm tree near ihe border
of villages Bh'aori and Deorakhedi; Sohrab is said to have pointed
out. a place als.o on the border of those Villages, as the. place where
he is alleged to have broken up· the revolver.and the gut1 and cut
up and burnt the wooden componertts of the gun.
As a CO!lsequence 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 Il!:ar
that pl11ce from where the other parts of the gun were recovered
and a number of disjointed and mutilated .firearm parts, Silllle .used
and unused cartridges were recovered.
A saddle from which one
of the stirr11ps with a part of the strap was mi~sing was rewv.ered
from· the house of . one Darvesh, the .maternal uncle of acc11sed
Sohrab. The. strap which is alleged to have been fou'nd near the
scene of the occurrence according to the prosecution case, matched
with the stirrup and strap found on that saddle. The pyjama of
the deceased. and the two knives, said to have been recovered at
the instance of accuse.d 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 Sobalsingh'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 on and five bullets were extracted, thrcil
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SOIRAB v. STATE (Jaganmohan Red4yJ J.)
4.7$
from the left hand and two from the right. These pellets were
identified to be gun shots.. The ballistic experts who also examine<)
several articles, said to have been 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-b.Y 0.38 revolver. The shots recovered froll)
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 rook place but that the death of Sobalsingh wa-.
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 59hrab had fired pistol shots and had pulled
o.ut Sobalsingh' s shirt dmjng the chase was characterised as a pure
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fabrication. It was also held that lib.ere is no evidence to prove
that either the shirt ~longs 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
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deceased and the other _witnesses Arjun P.W. 2, Kishandas P.W. 6,
Babula! P.W. 31 were disbelieved. Of the seven incised injuriei;,
most of them were post-mortem 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
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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 le~! then
the level at which they had entered the body which wouid show
that the person who shot should have been at a considerable lower
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level than thf'. victim, ~ess it be that the latter was bending or the
former kneeling; the evidence, however, shows that the incident
happen~ on even gr~und and no one speaks of anybody bending
or kneehng, nor can 1t 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
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on the ground aind assailant was standing; from the pellets extracted from Nadar's hands, they could not have been caused in
t~e manne~ sPoken to by the witnesses; and the story of firing
with the pistol forms such an integral part of the story of the·
13-LJ286Sup.cI/72
476
SUP·REME COURT REPORTS
[1973] I S.C.R.
prosecution case a~ a whole, it would be unsafe to believe the
witn~ in thk 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 i.n which the killing took place. 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 "f the assailant cannot be ruled out. As regards fring of a pistol, there is absolutely no corroboration and the
evidence was characterised as a mvth. The hole in the shirt could
have been only caused by the firiiig of the pistol and nothing collected on the spot showed that Sohrab fired a pistol or he tired
a pistol on Sobalsingh. The story of the pistol was, t11erefore, 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 ~hots with a gun given by Nadar. This was
corroborated by the m¢ical evidence which indi~ates that the
injuries on the decease_d 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 t'o 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 def once story that
Nadar was easing himself when he was attacked all o( a sudden
after which a scuffle between Sohrab and Sobalsingh took place
resulting in the accidental firing of the gun was difficult to comprehend. The High Court however dealt with the· several c.ontentions urged in respect of the story that Nadar had handed a gun
to Sohrab which .he c.ould 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 direction's of the injury on Sobalsingh indicates that the firing was from below when
Sohrab was at a hjgher level, or that the witnesses could not have
i;>een seen from the place where they were or that Sohrab fired
at Sob;1lsmgh, or that he fired it when its barrel wa> at a distance
of 1 t cubits from Sobalsingh were all discussed, but they were not
c-0nsidered to throw any doubt on the main version of the ey~
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SOllllAB v. STATE (Jaganmohan Reddy, /.)
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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 ha 1·:i been at
a level lower th;u;r the victim and such a state has not been
told by witn~es. Rather the story clearly excludes such
a possibility has no doubt some merit if we accept the
story of the;: prose<;ution 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 restl of the details are
imaginations and inferences Nadar's in_juries on his palms
cannot be explain¢ strictly on the basis of the prosecution version; but as we have seen the details are unbelievable we can only say the witnesses could not see
how the injuries on Nadar's palms were received. They
were received undoubtedly on the sp0t and when gun was
fired. 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 So~rab fired a gun at Soba\singh and N;idar
hand_ed over the gun t<o him. Both of them are therefore guilty."
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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 whiqh 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' thar Sohrab fired at the deceased,. which also
caused injury to Nadar. The position of the eye witn~ses in relation to the occurrence may have bel:n such that aH the details
could not have been noticed, but that the salient features of the
SUPREME COURT JU!J>Ol\TS
· (1973] I S.C.R.
prOl;ecUtitm story was tiue is. established by the evidence of the eye
witnesses. It · amiears to us that merely because there have beeI1
discrepancies and ·contradicLions in the evidence of some or all
of the wjll).e&ses 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 tlhe
appellants it will convict them. This Court has held that fqlsus 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 tht;_ir evi~ce may not be accepted in respect of the
main incident wl_tlch they_ have witnessed but that is not to say that
their evidence as to the salient features of tihe case after cautious
scrutiny cannot be considered though where the substratum of the
prosecution case or ma_terial 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 wi':h most of the conclusions
arrived at by the Sessions Judge it could not reverse the order of
acquittal. The. Privy Council case in Shea Swarup and Ors. v.
King Emperor(') and the judgment of this Court adopting the view
enunciated therein have been referred to us. Jt is now well established that under Sections 417, 418 and 42.3 of the Code of Criminal Procedure, the -·High Court has fun . power to review at
large the evidence upon which the order of acquittal was founded
?Ld to reach th~ 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.
Bu~ in exercising the 2ower conferred . by the Code and before
reaching its condusicms upon fact, the High Court should and
will always giye proper weight and consideration to such matters
as (!) 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 bis 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 Ai?arwal v. State of Maharashtra(') and it was pointed out that the different phraseology· used
(I) A.LR. 1934 P.C. 227.
(2) [1961] 3 S.C.R. 120.
(3) [1963] 2 S.C.I\. 405.
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SOHRAB v. STATE (/agmJmohan Reddy, J.)
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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 a~ainst the acquit~al to reyiew ~he
entire evidence and to come to its own conclus10n but m domg
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
conr.lusion on those facts but should express the reasons in its
judgme1.t, 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 cmrect 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 itse1f 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 c6uld 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 unartimom 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.l.R. was lodged in which the main story as spoken to by the.
witness was given. Jn it the informant, Mahadeo had stated as
follows:-
"I saw that Sohrab caught Sobal . on the boundary
line of the field of Chensingh and Nadar came with
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gun from the side of the cart. Bashir and Sardar came
there running from the side of the cart road and reached there.
Nadar gave the 11;Un to Sohrab and caught
Sobal and Soh~.rab 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
4 8 0
SUPREME COURT REPORTS
[1973) I S.C.R.
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 AIM. to
attend the Court, that he was on the mare, that Nadar, his sisterin-law, servant Gabbu and one child were going jn a car.t, 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. Soba'singh 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 t0ld
Nadar to g() and make a report at the Police Stations.
I got myself relieved of the fear and then after twotluee days I mysell 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, aecording 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.
However, when Nadar was running away, he was Injured on the palms is not denied.
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Nadar in his statelllent also admits th;it on the day of the
,
,9ccurrence Gabbu, his. ~istercin-Jaw and he was going to attend •C-Hr>< •
..:lho,,·dated'· 'fix¢ in the case of Chhogya Chaniilr at Sawer,
tha~·t\'H
Sohrab ·had sta."ted on a mare bi:fore them, that their cart came '
ah~d· of Maharajganj, that behind the cart at .some
distance
Sobalsin~ and Chhogya were coming, that Sobalsingh hild a
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SOHRAll v. STATE (Jaganmohan Reddy, J.)
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 Jay 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 citrt he came
to Sawer with his sister-in-law and from there he sent her to
Kha_irana 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 hi~ face upward.
The
second shot according to Sohrab was the one 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 <>f
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 thert'-
was a fire from the gun as a result of that fire and the subsequent
one, Sobalsingh died.
That the sliot was filed 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 scufile or deliberately and the second shot also occurred
when the gun was in the hands of Sohrab, whether it was fired
on it be1ng 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 accid~ntal
as a result of which Sobalsingh was killed. In our view,
the
defence version does not fit in with the post-mortem 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
sun-eME COUJ!T 11EPORT8
[19'1~] l s.c.•.
latter is an entry wound and tlie former emi:bit wound of that
entry wound. It has not been pi>lnted Out• tO' us nor obulcl ~
find any justification for this assumption from the doctor's ovi·
dence.
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 nothposition 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.J>.S.
Appeal dismissed.
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