Where ocular evidence is found trustworthy and confidence inspiring, the same is given preference over medical evidence. It is settled that casual discrepancies and conflicts appearing in medical evidence and the ocular version are quite possible for variety of reasons. During turmoil when live shots are being fired, witnesses in a momentary glance make only tentative assessment of points where such fire shots appeared to have landed and it becomes highly improbable to mention their location with exactitude
As far as the question that the complainant was brother of the deceased, therefore) his testimony cannot be believed to sustain conviction of the appellant is concerned, it is by now a well established principle of law that mere relationship of the prosecution witnesses with the deceased cannot be a ground to discard the testimony of such witnesses unless previous enmity or ill will is established on the record to falsely implicate the accused in the case. Both these PWs were inmates of the house, in front of which occurrence took place, therefore, their presence was natural and the same is fully established from the record. Learned counsel for the appellant could not point out any reason as to why the complainant has falsely involved the appellant in the present case and let off the real culprit, who has committed murder of his real brother. Substitution in such like cases is a rare phenomenon. The complainant would not prefer to spare the real culprit who murdered his brother and falsely involve the appellant without any rhyme and reason.
While appreciating the evidence, the court must not attach undue importance to minor discrepancies and such minor discrepancies which do not shake the salient features of the prosecution case should be ignored. The accused cannot claim premium of such minor discrepancies. If importance be given to such insignificant inconsistencies then there would hardly be any conviction.
To arrive at a just conclusion, the courts can call any person likely to be acquainted with the facts of the case after ascertaining it from the Public Prosecutor or the complainant, subject to general provisions that summoning of any such witness does not cause delay or defeat the ends of justice. Section 265-F(2) of the Code of Criminal Procedure empowers the Courts to summon a person, after having been ascertained from the Public Prosecutor or the complainant, who is likely to be acquainted with the facts of the case and to be able to give evidence for the prosecution. Section 265(7) grants even to the accused a right to apply for summoning any witness and production of documents. The very purpose of Section 265-F is to ensure the concept of a fair trial and to achieve this purpose equal opportunity has been given to both the accused and the prosecution for summoning the evidence. There is nowhere mentioned in this Section that only those witnesses could be examined whose statements under Section 161 CrP.C. have been recorded. Under this provision of law i.e. Section 265-F the Trial Court is not bound to record the statements of only those witnesses who have been listed in the calendar of witnesses. On the other hand, Section 540 r.P.C. empowers the Trial Court to summon a material witness even if his name did not appear in the column of witnesses provided his evidence is deemed essential for the just and proper decision of the case. In the present case, although the statement of Zameer Hussain (PW-11) under Section 161 Cr.P.C. could not be recorded by the Police yet the fact remains that he was named as an eyewitness in the very FIR and was fully acquainted with the facts and circumstances of the case.
section is divisible in two parts. In the first part, discretion is given to the Court and enables it at any stage of an inquiry, trial or other proceedings under the Code, (a) to summon anyone as a witness, or (b) to examine any person present in the Court, or (c) to recall and re-examine any person whose evidence had already been recorded. On the other hand, the second part appears to be mandatory and requires the Court to take any of the steps mentioned above if the new evidence appears to it essential to the just decision of the case. The object of the provision, as a whole, is to do justice not only from the point of view of the accused and the prosecution but also justice from the point of view of the society. The Court examines evidence under this section neither to help the prosecution nor to help the accused. It is done neither to fill up any gaps in the prosecution evidence nor to give it any unfair advantage against the accused. Fundamental thing to be seen is whether the Court considers this evidence necessary in the facts and circumstances of the particular case before it. If this results in only "filling of lacuna" that is purely a subsidiary factor and cannot be taken into consideration. There is no bar that a witness, whose statement under Section 161 Cr.P.C. had not been recorded at the time of investigation, cannot be allowed to examine under Section 540 Cr.P.C. When a witness examined in Court, whose statement has not been recorded at the time of investigation under Section 161, Cr.P.C., the evidentiary value to be attached to the evidence of such witness has to be looked into and if it is found that prejudice has been caused to the accused then the evidence of such witness may or may not be acted upon. Therefore, the argument of the learned counsel for the appellant is misconceived.
The phrase rigor mortis is latin with rigor meaning stiffness and mortis meaning death. Rigor mortis is a temporary condition. Depending on body temperature and other conditions, rigor mortis lasts proximately for 72 hours. The phenomenon is caused by the skeletal muscles partially contracting. The muscles are unable to relax, so the joints become fixed in place. Factors that affect rigor mortis include (i) temperature/weather, (ii) physical exertion, (iii) age, (iv) body fat, (v) any illness the person had at the time of death, (vi) sun exposure, (vii) gender, (viii) body structure, (ix) genetics, (x) tribe & (xi) inhabitation. Admittedly, the occurrence took place in the night of January and development of rigor mortis in the cold days is not surprising.
CRIMINAL APPEAL NO. 398 OF 2020
Sajid Mehmood VERSUS The State
31-05-2022
0 Comments