TMI Blog2003 (11) TMI 643X X X X Extracts X X X X X X X X Extracts X X X X ..... under Sections 302 and 307 of the Indian Penal Code, 1860 (for short the IPC ) and also Section 25 of the Arms Act, 1959 (for short the Arms Act ). Sentence of imprisonment for life, 7 years and one year respectively was awarded. Originally 5 accused person's were there, and each was charged for the commission of offence punishable under Sections 302, 307 read with Section 34, and 447 IPC. One Golok Pal died before charge, sheet was filed. Similarly accused Narendera Patra died during trial and three persons namely accused appellant Phani, Niranjan Pal and Swaran Dutta faced trial. The trial Court found accused Niranjan Pal and Swaran Dutta to be not guilty. It was only the accused-respondent No. 1 who was found guilty and convicted a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce again loaded the gun and fired another shot aiming at Bhanumati, wife of Brindaban Pal (hereinafter referred to as the 'deceased'), who was then engaged in sweeping the courtyard. The bullet struck on her back. She fell down. At this stage two sons of Brindaban, Suchand and Ratan, PWs 5 and 4 respectively together with Brindaban rushed out of the house and raised hue and cry. Before the villagers assembled, all except accused Phani, left the house. Phani was still standing on the balcony of the first floor room with the gun in his hand threatening the villagers with dire consequences in case they proceeded further. As the assemblage outside the house grew larger, accused Phani fled away and the villagers entered into the house. B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No. 2270/81, the four accused persons were charged further under Sections 447 IPC on 2.2.1982. Before trial of the case started, accused Narendera Patra died and the case against him was filed on 20.1.1983. Thus the case remained with only three persons viz. Phani Pal, Niranjan Pal and Swaran Dutt. They have faced trial for charges under Sections 302/34, 307/34 and 447 IPC. Besides the above charges a further charge under Section 25(1)(a) of the Arms Act was framed against accused Phani Pal. 3. In order to further its case, prosecution examined 21 witnesses, while accused persons who pleaded innocence and false implication examined two witnesses. Their stand was a fence was already in existence inside the courtyard. On the date and time ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only when the gunshot was made from a close range. It was noticed that the prosecution tried to improve upon its version by making a departure from the scenario as projected from the beginning and tried to reconcile the oral evidence and the medical evidence by indicating a new background. Additionally, the so-called dying declaration on which reliance was placed by the prosecution was not acceptable inasmuch as there was clear admission by the person who recorded the dying declaration that the deceased only affirmed what her husband (PW-1) stated in response to the queries put by the officer recording the dying declaration. That being so, the High Court found that the prosecution version to be untrustworthy and not capable of acceptance. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... minal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the Court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate Court to re-appreciate the evidence where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused really committed any offence or not. [See Bhagwan Singh and Ors. v. State of Madhya Pradesh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on its own make out a new case for the prosecution and convict the accused on that basis. Only when a conclusion is arrived at on the evidence and the substratum of the case is not changed, such a course is permissible. The High Court noticed the medical evidence to be consistent with the defence version that the deceased was hit by the gunshot from a close range and that she was accidentally shot in the scuffle between the informant party and the accused. Coming to the acceptability of the dying declaration, the High Court has rightly discarded it. The declaration made by the deceased was not voluntary and in fact the answers were not given by her and it was her husband who was answering. Such nature and manner of response from the injure ..... X X X X Extracts X X X X X X X X Extracts X X X X
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