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PETITIONER: ADYA SINGH

       Vs.

RESPONDENT: STATE OF BIHAR

DATE OF JUDGMENT:       29/07/1998

BENCH: G.T. NANAVATI, S.P. KURDUKAR

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T      The  appellant   is  challenging  in  this  appeal  his conviction under  Section 302  read with  Section 34 IPC and Section 27 of the Arms Act recorded by Sessions Court, Patna in Sessions  Case No.86  of 1976  and confirmed  by the High Court in Criminal Appeal No.57 of 1976.      Learned counsel  for the  appellant took us through the evidence of  eye-witnesses who  have said  that the deceased was hit  on his back by the shot fired by the appellant. But P.W.5  -   Doctor  Kalwar,  who  had  performed  post-mortem examination has  deposed that  entry wound  was on the chest and  the  exit  wound  was  on  the  back.  Learned  counsel submitted that the medical evidence clearly establishes that the assailant  had fired a shot when the deceased was facing him and  not when  his back  was towards  the assailant, was deposed by  the eye-witnesses.  He submitted that is view of this inconsistency,  the courts  below  ought  not  to  have accepted their evidence.      This aspect  was considered by the trial court and also by the  High  Court  and  they  have  rightly  rejected  the contention same.  The Doctor,  who performed the post-mortem examination, as  admitted that  he had  prepared  the  post- mortem report  subsequently in  his office  on the  basis of notes which he had prepared earlier and which were destroyed thereafter. He  also admitted that the appellant was working as a  compounder in a Government hospital. That explains the reason why  there is an inconsistency in the evidence of Dr. kalwar  and  of  Dr.  Singh,  who  first  examined  deceased Mahinder Singh,  P.W. 6-  Dr. Singh not only in his evidence but also  in the Injury Certificate which he had issued soon after examining  Mahinder Singh  has described  the wound on the back as an entry wound and the wound on the chest as the exit wound.  Nothing was  elicited in  his cross-examination which  could create a doubt regarding the correctness of his evidence. An  attempt by  the Doctor who had performed post- mortem examination  to help the appellant is quite evidence. This cannot  be regarded  as a  case  in  which  because  of inconsistency between  the ocular  evidence and  the medical evidence, the  evidence of  eye-witnesses should  have  been rejected.

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    We see  no reason  to differ from the findings recorded by the  High Court.  The evidence  of eye-witnesses  clearly establishes that  the appellant  had  caused  the  death  of Mahinder Singh by firing a gun.      This appeal  is, therefore,  dismissed. The appellant’s bail is  cancelled an  he is ordered to surrender to custody to serve out the remaining sentence.