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PETITIONER: SOHRAB S/O BELINAYATA & ANR.

       Vs.

RESPONDENT: THE STATE OF MADHYA PRADESH

DATE OF JUDGMENT02/05/1972

BENCH: REDDY, P. JAGANMOHAN BENCH: REDDY, P. JAGANMOHAN MITTER, G.K.

CITATION:  1972 AIR 2020            1973 SCR  (1) 472  1972 SCC  (3) 751  CITATOR INFO :  F          1973 SC2443  (19)  RF         1988 SC 696  (13)

ACT: Practice and Procedure-Power of High Court in appeal against acquittal.

HEADNOTE: In  an  appeal  against acquittal,  the  High  Court,  while maintaining the acquittal of some of the accused,  ;reversed it  in  respect  of the appellants  and  convicted  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 reversed.  But in exercising this power the  High Court  should give proper weight and consideration ’to  such matters  as,  (a)  The views of the trial judge  as  to  the credibility  of  the  witnesses;  (b)  the  presumption   of innocence in favour of the accused, a presumption certainly not  weakened by the fact that he has been acquitted at  the trial;  (c) the right of the accused to the benefit  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 advantage  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 express its reasons  in  its  judgment which led it  to  hold  that  the acquittal was not justified. [478 E-H; 479 A-C] In  the  present case, the High Court did consider  all  the aspects considered by the Sessions Court, with most of which it  has also concurred especially those aspects of the  case in  respect  of  which  witnesses  tried  to  embellish  and exaggerate.  But that by itself, 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   because   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

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prosecution  had  to  be  discarded.,  It  was  only   after exercising  caution  and care and sifting 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  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 across  witness  whose evidence  does not contain a grain of untruth or at any  Ira some  exaggeration  or embellishment.. Where,  however,  the substratum  of the prosecution case, or a material  part  of the  evidence,  could not  be belived,  it  would  not  be permissible for the Court to reconstruct a story of its  own out of the rest. [477 G-H; 478 A-D] Sheo Swarup and Ors. v. King Emperor, A.I.R. 1934 P.C.  227; Sarwant Singh v. State of Rajasthan, [1961] 3 C.C.R. 120 and Agarwal  v.  State of Maharashtra, [1963]  2  S.C.R.  405, referred to. 473

JUDGMENT: CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 240 of 1969. Appeal  by special leave from the judgment and  order  dated August  5,  1969 of the Madhya Pradesh  High  Court,  Indore Bench in Criminal Appeal No. 26 of 1967. Frank Anthony, P. C. Chandi, A. T. M. Sampat, E. C. Agarwala and K. C. Agarwala, for the appellants. I. N. Shroff, for the respondent. The Judgment of, the Court was delivered by P.   Jaganmohan  Reddy, J. The Sessions Judge of Indore  ac- quitted  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.  They were also convicted under  Section 25-A  of  the  Arms Act and each of them  was  sentenced  to one_year’s   rigorous  imprisonment.   The  sentences   were directed to run concurrently.  This appeal is by certificate against the said convictions and sentences. The   prosecution  case  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.  Jinnatbai with her little son and Nadar went  in a chhakda driven by Gaburia.  Ismail, Bashir and Sardar were on  bicycles 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 Chhakda.  It is  further  alleged that  shortly before the departure of the  accused  persons, Sobal 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

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of  mouza  Ranwer.   Chofia however ran  away.   It  is  the prosecution  case  that in the course of  the  chase  Sohrab fired at Sobals ingh 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 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 gun at Sobalsingh as a result  of which both Sobalsingh and Nadar fell down.  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  struck  Sobalsingh with knives.  It is said that as a result of the  cumulative effect  of  firing  by Sohrab and  stabbing  by  Bashir  and Sardar,  Sobalsingh  died on the spot, after  which  Sohrab, Nadar,  Bashir  and  Sardar went upto the  Chhakda,  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 recording the information an F.I.R. was issued.  The  police reached the spot where the body of Sobalsingh was lying  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 statement made by- Bashir  two knives  were  recovered from the trunk of a date  palm  tree near the border of villages Bhaori and Deorakhedi; Sohrab is said  to  have pointed out a, place also on  the  border  of those  villages,  as the place where he is alleged  to  have broken up the revolver and the, gun and cut up and burnt the wooden  components  of the gun.  As a  consequence  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  near that place from where the other parts  of  the gun were recovered and a number of disjointed and. mutilated firearm  parts,  some  used  and   unused  cartridges   were recovered.   A saddle from which one of the stirrups with  a part  of the strap was missing was recovered from the  house of one, Darvesh, the maternal uncle of accused Sohrab.   The strap which is alleged  to have been found near the scene of the occcurrence according to the prosecution case,,  matched with  the  stirrup  and strap found  on  that  saddle.   The payjama  of  the deceased and the two knives, said  to  have been recovered at the instance of accused  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  Sobal singh’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 an and- five bullets  were extracted, throe 475 from  the left hand and two from the right.   These  pellets were identified to be gun shots.  The ballistic experts  who I  also  examined  several  articles,  said  to  have   been

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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 by o.38 revolver.  The shots recovered from 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 took place but that the death  of Sobalsingh  was 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  Sohrab  had  fired pistol  shots and had pulled out Sobalsingh’s shirt  during, the  chase was characterised as a pure fabrication.  It  was also held that there is no evidence to prove that either the shirt  belongs 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 deceased and the other witnesses  Arjun P.W. 2, Kishandas P.W. 6, Babulal P.W. 31 were  disbelieved. of the seven incised injuries, most of them were  postmortem 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  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  level, then  the  level at which they had entered  the  body  which would  show that the person who shot should have been  at  a considerable lower level than the victim, unless it be  that the latter was bending or the former kneeling; the evidence, however, shows that the incident happened on even ground and no one speaks of anybody bending or kneeling, nor can it  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  on the ground and assailant was standing; from the pellets  ex- tracted from Nadar’s hands, they could not have been  caused in  the manner spoken to by the witnesses; and the story  of firing  with the pistol forms such an integral part  of  the story of the L1286Sup.CI/72 476 prosecution case as a whole, it would be unsafe to  believe, the  witnesses in this 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 in which the  killing  took  place.

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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 of the  assailant cannot be ruled out.  As regards firing of  a pistol,  there  is  absolutely  no  corroboration  and   the evidence was characterised as a myth.  The hole in the shirt could have been only caused by the firing of the pistol and nothing  collected  on the spot showed that Sohrab  fired  a pistol or he fired a pistol on Sobalsingh.  The story of the pistol  was,  therefore, 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 shots with a gun given by Nadar.   This  was corroborated  by the medical evidence which  indicates  that the injuries on the deceased- 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 to 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 defence story that Nadar was easing himself  when he was attacked all of a sudden after which  a scuffle  between Sohrab and Sobalsingh took place  resulting in  the accidental firing of the gun was difficult  to  com- prehend.   The  High Court however dealt  with  the  several contentions  urged  in respect of the story that  Nadar  had handed  a  gun to Sohrab which he could  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 directions of the injury on Sobalsingh indicates that  the firing was from below when Sohrab was at a  higher level,  or that the witnesses could not have been seen  from the   place  where  they  were  or  that  Sohrab  fired   at Sobalsingh,  or  that he fired it when its barrel was  at  a distance of 1 1/2 cubits from Sobalsingh were all discussed, but they were not considered to throw any doubt on the  main version of the eye 477 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 have been at a  level lower  the the victim and such a state has not been told  by witnesses.   Rather  the  story  clearly  excludes  such   a possibility  has no doubt some merit if we accept the  story of  the  prosecution 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  rest  of  the details are imaginations and inferences Nadar’s injuries  on his  palms cannot be explained strictly on the basis of  the prosecution version; but as we have seen the details are un- believable  we can only say the witnesses could not see  how the  injuries  on Nadar’s palms were  received.   They  were received  undoubtedly on the spot, and when gun  was  fired.

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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 Sohrab fired  a               gun  at sobalsingh  and Nadar handed over  the               gun  to  him.   Both  of  them  are  therefore               guilty." 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 which 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 that Sohrab fired at the deceased, which  also caused  injury to Nadar.  The position of the eye  witnesses in  relation to the occurrence may have been such  that  all the  details  could  not have been  noticed,  but  that  the salient features of the 478 prosecution  story was- true is established by the  evidence of the eye witnesses. It appears to us: that merely  because there  have  been discrepancies and  contradictions  in  the evidence  of  some or all of the witnesses  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 the appellants it will convict them.  This  Court has held that faksus 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 their evidence may not be accepted in respect of the main  incident which the have witnessed but  that is not  to say  that  their evidence as to the salient features of  the case  after  cautious scrutiny cannot be  considered  though where  the  substratum of the prosecution case  or  material 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 with  most of  the  conclusion-% arrived at by the  Sessions  Judge  it could not reverse the order of acquittal.  The Privy Council case  in  Sheo Swarup and Ors. v. King  Emperor(1)  and  the judgment of this Court adopting the view enunciated  therein have  been referred to us.  It is now well established  that under  Sections  417, 418 and 423 of the  Code  of  Criminal Procedure, the High Court has full power to review at large the evidence unon which the order of  acquittal was  founded and  to  reach the, 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.  But in exercising the power  conferred

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by  the Code and before reaching its conclusions upon  fact, the High Court should and will always give proper weight and consideration to such matters as (1) 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 his 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 Agarwal v. State of Maharashtra(3) and  it was pointed out that the different phraseology used (1) A.I.R. 1934 P.C. 227.     (3)  [1963]2 S.C.R.  405.  (2) [1961] 3 S.C.R. 120. 479 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  against  the acquittal  to review the entire evidence and to come to  its own  conclusion but in doing 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 conclusion on  those facts but should express the reasons in its judgment,  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 correct 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  itself  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 could  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 unanimous  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.I.R.  was lodged  in which the main story as spoken to by the  witness was  given.   In  it the informant, Mahadeo  had  stated  is follows "I saw that Sohrab caught Sobal on the, boundary line of the field of Chensingh and Nadar came with a gun from. the side, of  the cart.  I.Bashir and Sardar came there  running  from the  side of the cart road’ and reached there.   Nadar  gave the ’gun to Sohrab and caught Sobal and Sohrab 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

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480 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 A.M. to attend the Court, that he  was on the mare, that Nadar, his sisterin-law, servant Gabbu and one child were going in a cart, 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.  Sobalsingh 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 told Nadar to go and  make a  report at the Police Stations.  I got myself relieved  of the  fear and then after twothree days I myself 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, according   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.  How-ever, when Nadar was  running away, he was injured on the palms is not denied. Nadar  in his statement also admits that on the day  of  the occurrence  Gabbu,  his sister-in-law and he  was  going  to attend  the  dated fixed in the case of  Chhogya  Chamar  at Sawer,  that Sohrab had started on a mare before them,  that their  cart came ahead of Maharajganj, that behind the  cart at  some distance Sobalsingh and Chhogya were  coming,  that Sobalsingh had a 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  lay  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 cart he came  to  Sawer  with  his sister-in-law  and from there he sent her to Khajrana  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  his  face upward.   The  second shot according to Sohrab was  the  one

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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  of 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 there was  a  fire from  the  gun as a result of that fire and  the  subsequent one, Sobalsingh died.  That the shot was fired 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  scuffle  or deliberately and the second shot also occurred when the  gun was in the hands of Sohrab, whether it was fired on it being 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 accidental  as a result of which Sobalsingh was killed.   In our  view,  the defence version does not fit  in  with  the postmortem   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 latter    is an entry wound and the formerexhibit   wound of that entry  wound. It has not been pointed out to us  nor could we find any justification for this assumption from the doctor’s  evidence.   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 noth position 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.P.S. Appeal dismissed. 483