D.M. Chandrasekhar, J.
1. The two accused in Sessions Case No. 42 of 1963 on the file of the First Additional Sessions Judge, Dharwar, have filed this appeal against the order of conviction and sentence passed on them. Both of them were convicted for an offence punishable under Section 307, I.P.C. and sentenced to rigorous imprisonment for three years. Accused 1 was also convicted for an offence under Section 27 of the Arms Act 1959 and was sentenced to rigorous imprisonment for one year. But this sentence was directed to run concurrently with the sentence for the offence under Section 307, I.P.C.
2. The case against the accused was that both of them shot at Channabasappa (P.W.3), with a D.B.B.L. Gun and a pistol respectively and thereby attempted to murder him. The prosecution case is briefly as follows:
On 19-2-1963 about an hour after sunrise, Irappa, (P.W. 2), his brother Channabasappa (P.W. 3) and their servant Mushappa (P.W. 7) were going in Marewad-Narendra Road from Marewad village towards their field for plucking Tuar crop. About two furlongs away from Marewad village both the accused were standing near a bund by the side of the road, armed with a D.B.B.L. gun and a pistol. They came near the cart. Accused 1 aimed the gun (M.O.1) towards Irappa (P.W. 2). On seeing this, Channabasappa (P.W. 3) who was sitting in the rear portion of the cart, got up. While he was so getting up, the cartridge fired by accused-1 hit him (P.W. 3) on his head. He sustained injuries and fell down from the cart. The bullocks got frightened and began to run. Both the accused chased the cart for some distance. Irappa (P. W. 2) jumped out from the cart, ran away and escaped.
3. Channabasappa (P.W. 3) recovered from his unconscious state, got up and walked to his house in Marewad. His clothes were stained with blood.
4. Irappa (P.W. 2) also returned to the village a few minutes later. On the way, he met the Police Patil, narrated to him the incident and took him to his house. There they saw Channabasappa (P.W. 3) lying with injuries. The information given by Irappa (P.W. 2) was reduced to writing and the police patil took the first information report to the police at Dharwar which is about six miles from Marewad village.
5. An ambulance van was brought from Dharwar and Channabasappa (P.W. 3) was taken in it to Dharwar Civil Hospital at about 10-30 A.M. on the same day. The Doctor sent information about the injured to the Police over the phone. Very soon, the police also received the first information report from the Police Patil. The Sub Inspector of Police proceeded to the spot, prepared a panchanama of the injuries found on the body of Channabasappa (P.W. 3) and recorded his statement apprehending that he might die. The blood stained clothes worn by the injured were seized under a panchanama.
6. The Sub Inspector of Police then proceeded to Marewad village, took panch witnesses and went to the scene of occurrence. Irappa (P.W. 2) pointed out to him the spot where the incident had taken place. An empty cartridge case (M.O. 7) two pieces of wads (M.O. 12) and blood stained earth and grass (M.O. 13) were seized under a panchanama.
7. The Sub Inspector of Police went to Timmapur village in search of the accused. But the accused were absconding from the village. In the house of accused-1, his elder brother Shivappa produced a gun (M. O. 1) which was seized under a panchanama.
8. The accused who were absconding, surrendered themselves before the Judicial Magistrate, Dharwar. The blood stained clothes -and earth were sent for Chemical examination. The gun, the empty cartridge case and the wads were sent to the ballistic expert.
9. According to the prosecution, there was ill will between accused 1 and Irappa (P. W, 2) on account of some quarrel between Shivappa, elder brother of Accused-1 and Irappa (P. W. 2) in connection with a panchayat convened for the purpose of making accused 1 to live with his wife whom he had abandoned. The wife of accused-1 is Irappa's (P. W. 2's ) father's sister's daughter.
10. Basavannappa (P. W. 12) father-in-law of accused 1 has deposed that accused-1 had abandoned his wife and in the course of a panchayat held in that connection, hot words were exchanged between Irappa (P. W. 2) and Shivappa, brother of accused-1. The evidence of this witness has been corroborated by Irappa (P. W. 2). On this point, nothing has been elicited in the cross-examination of these two witnesses to disbelieve their evidence. But even if the prosecution evidence regarding the quarrel between Irappa (P. W. 2) and the brother of accused-1 is accepted as hue, there is nothing to show that there was any serious hostility between accused-1 and Irappa (P. W. 2).
11. Regarding accused-2 all that has been alleged by the prosecution is that he and accused-1 were owning neighbouring lands and were friends. It is in evidence that accused 1 and 2 are residents of different villages. Thus as against accused 2, the evidence adduced by the prosecution as to motive, is even more slender.
12-20. Irappa (P. W. 2) and Channabasappa (P. W. 3) and Mushappa (P. W. 7) are the eye witnesses to the occurrence. (After discussing the evidence His Lordship went on to say). The gun (M. O. 1) was seized from the house of accused 1 though he was absent at that time.
21. In their examination under Section 342 Cr. P. C., both the accused denied having committed the offence or even having gone to the alleged scene of occurrence. Both of them have also denied that they had absconded. Accused 1 also denied that there was any ill will between him and Irappa (P. W. 2). On the other hand, he stated that they were on cordial terms. Accused 1 admitted the ownership of the gun and stated that the license stood in his name. Accused Z denied that he and accused 1 were friends.
22. The learned Sessions Judge came to the conclusion that the evidence adduced by the prosecution was sufficient to bring home the offence to the accused.
23. Mr. Shamanna, the Learned Counsel for the appellant contended that the medical evidence in the case belies the evidence of the alleged eye witnesses, that the prosecution case was full of improbabilities, that the first information report was got up subsequently and that the prosecution had not chosen to place all the relevant materials before Court.
24. I shall now consider the main contention of Mr. Shamanna that the medical evidence does not support the prosecution case.
25. The wound certificate (Ex. P-6) states that P. W. 3 Channabasappa was brought to the hospital at 10-25 A. M. on 19-2-63 and eight injuries were found on him. Injury No. 1 was a contused incised wound on left frontal region. Injuries Nos. 2 and 3 were contused incised wounds on the left parietal region. Injury No. 4 was a contused lacerated wound on the left reception parietal region. Injuries 5 and 7 were contused incised wounds on the left occipital region. Injury No. 6 was a contused incised wound on the right occipital parietal region. On a reference made by the Police Sub Inspector, the Doctor (P. W. 5) stated in his letter (Ex. P-7) that these injuries might have been caused by a sharp cutting instrument and hard and blunt substance coming in contact with the injured parts with sufficient force.
26. In examination-in-chief, the Public Prosecutor put a question to the doctor that when a gun shot was fired and the pellet did not actually hit the head of a person but the broken pellets round or sharp scraped the skull of a person, whether the injuries found on the head of P. W. 3 Channabasappa could be caused. The answer given by the Doctor was that it was possible that those injuries might be caused under the aforesaid circumstances and that the abrasion on the right index finger could be caused due to a fall. But in his cross-examination, the Doctor stated that a gunshot injury will never cause an incised wound and that most probably the injuries on the head might not be due to a gun shot. The Doctor also stated that there was no scorching or blackening of skin or marks of tatooing or grains of gun powder on the person of Channabasappa (P. W. 3). The Doctor also added that a gunshot would cause more or less circular injuries and sometimes, the injuries caused would be oval and that none of the injuries in the wound certificate (Ex. P-6) were oval or circular.
27. To the questions put by the Court, the Doctor stated that his qualification was L.M.P. and that during the course of his service in the Civil Hospital at Dharwar he might have come across only three or four cases similar to the present case.
28. I think Mr. Shamanna is right in con-1 tending that the Doctor's evidence does not support the prosecution theory that the injuries were caused by gunshot.
29. But, Mr. Mahajan, the learned Government Pleader contended that the Doctor had stated that under certain circumstances, those injuries might be caused by a gun shot. Those circumstances referred to in his answer are the pellets not hitting the head but scraping the skull of a person, The prosecution case is that only one cartridge was fired by accused 1 from the gun (M. O. 1). The nature of the projectile discharged from the pistol alleged to have been used by accused 2 is not known. It is difficult to imagine that all the seven pellets which hit the head of the victim at different parts, scraped the skull. It is possible that the pellets which caused injuries Nos. 2 and 3 on the parietal region might have scraped the skull. But injury No, 1 is on the frontal region and injuries Nos. 4 to 7 are on the occipital region. If the pellets had hit the frontal region or the occipital region, it is very unlikely that they would have scraped the skull without causing circular or oblique wounds which are generally the result of gun shot.
30. of the seven wounds on the head, only wound No. 4 is a contused lacerated wound. The rest are all contused incised wounds. The Doctor has stated in his cross-examination that a gun shot injury will never cause an incised wound. This appears to be one of the reasons why the doctor has opined that it was very unlikely that these injuries were caused by a gun shot, The opinion given by the Doctor is in consonance with the view expressed in Modi's Medical Jurisprudence, 14th Edn. At page 229 of the book, it is stated as follows:
The injuries produced by projectiles discharged from firearms, present the characteristics of lacerated wounds, but their appearances vary according to the nature of the projectile, the velocity at which it was travelling at the moment of impact, the distance of the firearm from the body at the moment of discharge and the angle at which it struck the part of the body.
31. The learned Government Pleader sought to place reliance on the following passage in Taylors Medical Jurisprudence 11th Edn. Vol. 1, page 375 to establish that incised injuries can also be caused by gun shot.
The shape of entrance is usually circular if the bullet strikes at right angles to the surface, but tends to become increasingly oval if fired at an angle until the bullet glances across the tissues producing an injury similar to a cut or lacerated one.
32. But the learned Government Pleader has not established that a cut injury is the same as an incised injury. Further, it is highly improbable that all the pellets glanced across the skull without striking directly any part of the skull either at right angles or at an angle.
33. According to all the three eye witnesses, both the accused were standing on the right side of the cart, a little to the front. P. W. 3 Channabasappa has also stated that when accused 1 aimed his gun at Irappa (P. W. 2) both the accused were standing in front or the right side of this witness. If both the accused or either of them shot the firearms from the right side of P. W. 3 Channabasappa, it is difficult to explain how the injuries would be caused on the rear and left side also of his head. The learned Government Pleader tried to explain, that as the cart was moving it was possible that by the time accused shot at P. W. 3 Channabasappa, they were no longer in front of him but a little towards his rear. Even then, it is not possible to explain the injuries both on the frontal and on the occipital regions and on the left side of the skull. The other explanation suggested by Mr. Mahajan was that in that excitement P. W. 3 Channabasappa might have turned to a side and hence the left side of his head might have been exposed to the gun shot. Even this theory cannot explain how the injuries-could have been found on the frontal as well as the occipital regions and on the right as well as left sides of the head.
34. The learned Government Pleader contended that if the testimony of the eye witnesses-and the other positive evidence in the case were-found to be cogent and trustworthy the evidence of the Doctor cannot be taken as contradicting the positive evidence of the witnesses to the effect that the accused shot at P, W. 3 Channabasappa and caused injuries on his head; and that the accused should be found guilty in spite of the medical evdience.
35. There is considerable divergence of judicial opinion as to the value to be attached to the Medical evidence especially when there is conflict between such evidence and the positive evidence in the case, particularly of the eye witnesses. In Queen v. Ahmed Ally 11 Suth. WR Cr. 25 Norman, J. observed as follows: .The evidence of a medical man, or other skilled witness, however eminent, as to what he thinks may, or may not have taken place under a particular combination of circumstances, however confidently he may speak, is ordinarily a mere matter of opinion. Human judgment is fallible. Human knowledge is limited and imperfect. New and previously unobserved phenomena which, till they have been recorded are supposed to be impossible, are constantly being noticed....
36. In Basappa Bhimappa Doddamani v. State AIR 1961 Mys 21, the Doctor who conducted the post mortem examination gave opinion that the deceased might have taken his last meal about two or three hours before his death. On the basis of the Doctor's evidence, the defence counsel contended that death could; not have taken place at the time stated by the prosecution witnesses. Considering this contention, this Court observed as follows:
The opinion stated by the medical officer is at best an opinion. It cannot be taken as contradicting the positive evidence of the witnesses to the facts such as that the deceased took his last meal at about 4 P.M. and that he was stabbed at 5 P.M....
37. But it is well recognised that the state of digestion of the contents of the stomach and the bowel cannot be used as a reliable means for fixing the hour of death in relation to the last meal. As Taylor has pointed out in his book on Medical Jurisprudence, the rate of digestion varies in different persons and according to the functional efficiency of the gastric and intestinal activity. It is much retarted in the case of coma and insensibility, Death does not at once cause the process of digestion to cease -- indeed, the stomach may digest itself after death. I think, the above observations of this Court must be understood with reference to the Doctor's opinion, as to the time of death.
38. In Anant Chintaman Lagu v. State of Bombay : 1960CriLJ682 a question arose whether the medical evidence as to the death by poisoning was negative, the offence of murder by poisoning can still be proved by circumstantial evidence. Hidayathullah, J. who spoke for the majority view observed as follows:
To rely upon the findings of the medical man who conducted the post mortem and of the chemical analyser as decisive of the matter is to render the other evidence entirely fruitless. While the circumstances often speak with unerring certainty, the autopsy and the chemical analysis taken by themselves may be most misleading. No doubt, due weight must be given to the negative findings at such examinations. But, bearing in mind, the difficult task which the man of medicine performs and the limitations under which he works, his failure should not be taken as the end of the case, for on good and probative circumstances, an irresistible inference of guilt can be drawn....
Here, his Lordship was considering the effect of negative result in toxicological examination in a case of alleged murder by poisoning. Earlier, in this judgment, his Lordship has pointed out that:
though there is chemical test for almost every poison, it is impossible to expect search for every poison and even in chemical analysis the chemical analyser may be unsuccessful for various reasons such as the poison being eliminated by vomiting or order means or neutralised or metabolized and the analysis being faultily performed.
In Chacko Mathi v. State of Kerala : AIR1964Ker222 , the deceased had six injuries on various parts of the body and a portion on the left knee. One of the injuries on the chest had penetrated the pleura and the lung. The medical officer who conducted the autopsy gave opinion that the accused could have inflicted all the stab injuries only if he was sitting on the chest of the deceased. After quoting the aforesaid observations of Hidayatullah, J, in Anant Chitaman Lagu's case, : 1960CriLJ682 Anna Chandy, J. observed as follows:
Medical opinion is hardly decisive and often inconclusive because it is primarily an evidence of opinion and not of facts ... To my mind, the medical opinion, mostly guess work, on non-medical matters need not necessarily be correct.
39. In Nagindra Bala v. Sunil Chandra : 1960CriLJ1020 the trial Judge's charge to the Jury was as follows:
Now, gentlemen, when a medical witness is called in as an expert he is not a witness of fact. Medical evidence of an expert is evidence of opinion, not of fact. Where there are alleged eye witnesses of physical violence which is said to have caused the hurt, the value of medical evidence by prosecution is only corroborative. It proves that the injuries could have been caused in the manner alleged and nothing more. The use which the defence can make of the medical evidence, or any medical evidence which the defence might itself choose to bring, is to prove that the injuries could not possibly have been caused in the manner alleged and thereby discredit the eye witnesses. Therefore you must remember this particular point of view that if you believe the eye witnesses, then there is no question of having it supported by medical evidence; unless the medical evidence again in its turn goes so far that it completely rules out all possibility that such injuries could take place in the manner alleged by the prosecution and that is a point which you should bear in mind, because if you accept the evidence of the eye witnesses, no question of further considering the medical evidences arises at all. The only question in that case when yon consider the medical evidence is to test the eye witnesses' version as to whether any of the particular injuries shown in the report can be caused in the manner alleged by the prosecution. But if you don't believe the eye witnesses, then consideration of the medical evidence in any manner, becomes unnecessary ....
40. Dealing with the above portion of the charge to the Jury S.K. Das, J. who delivered the majority opinion in that case, observed as follows:
We do not think that any exception can be taken to the observations made above in the context of the two versions which the Jury had to consider. One version was that the Colonel had been assaulted and thereby sustained the injuries; the other version was that he had sustained injuries by a fall on a rough surface like the masonry letter box. None of the two doctors were giving direct evidence of how the injuries were caused; they were merely giving their opinion as to how in all probability they were caused. The learned Judge, was therefore, right in directing the Jury in the way he did about the medical evidence in the case.
41. But, Hidayatullah, J. who delivered the minority opinion, in that case, observed as follows:
I do not think that the direction is either correct or complete. It is incorrect, because a medical witness who performs a post mortem examination is a witness of fact, though he also gives an opinion on certain aspects of the case. Further, the value of a medical witness is not merely a check upon the testimony of eye witnesses; it is also independent testimony, because it may establish certain facts, quite apart from the other oral evidence. If a person is shot at close range the marks of tatooing found by the medical witness would show that the range was small, quite apart from any other opinion of his. Similarly, fractures of bones, depth and size of the wounds would show the nature of the weapon used. It is wrong to say that it is only opinion evidence; it is often direct evidence of the facts found upon the victim's person.
42. In Mohinder Singh v. The State : 1SCR821 the prosecution case was that the deceased was shot at from a close range by a gun. The bullet had blackened the area where it entered the brain but did not shatter the brain. The High Court of Punjab had upheld the conviction of the accused by the Sessions Judge. Reversing the decision of the Punjab High Court, Fazal AH, J. observed as follows:
On a careful reading of the Judgment under appeal, it appears that the Learned Judges of the High Court strongly felt that they tad no adequate explanation in the oral evidence before them for certain puzzling features of the injuries on Dalip Singh. This is exactly what we also feel in this case, and it seems to us that the evidence which has been adduced falls short of proof in regard to a very material part of the prosecution case. In a case where death is due to injuries or wounds caused by a lethal weapon, it has always been considered to be the duty of the prosecution to prove bv expert evidence that it was likely or at least possible for the injuries to have been caused with the weapon with which and in the manner in which they are alleged to have been Caused. It is elementary that where prosecution has a definite or positive case, it must prove the whole of that case. In the present case, it is doubtful whether the injuries which are attributed to the appellant were caused by a gun or by a rifle. Indeed, it seems more likely that they were caused by a rifle than by a gun, and yet the case for the prosecution is that the appellant was armed with a gun, and in his examination, it was definitely put to him that he was armed with the gun P-16....
43. In Santa Singh v. State of Punjab : 1976CriLJ1875 the prosecution case was that the accused who had a rifle with him shot at the deceased from his back. According to the medical evidence, the shot was fired from a very close range about 9 inches a yard or a yard and a half; but according to what was shown to the Draftsman by the eye witnesses, the rifle was fired from a range about twenty-five feet, Chandrasekhara Aiyar, J., who delivered the majority opinion, held that in the face of the medical evidence the testimony of the eye witnesses could not be safely accepted.
44. From the aforesaid decisions, I think, it can fairly be deduced that where the medical evidence goes so far as that it completely rules out all possibility that injuries could take place in the manner alleged by the prosecution, such medical evidence is a very important factor in assessing the testimony of eye witnesses and in determining whether the testimony of the eye witnesses, can safely be accepted.
45. In the present case, P. W. 5, the Doctor, has deposed that a gunshot injury will never cause an incised wound. It is true that the Doctor has not gone so far as to say that injuries 1 to 7 could never be caused by a gun shot, But the prosecution itself was content with eliciting from him that those injuries could be caused only when the pellets scraped the skull. As I have ' already pointed out, it is most unlikely that all the pellets which hit different parts of the skull of P. W. 3 scraped the skull; it is also difficult to believe that if P. W. 3 Channabasappa was shot at from his right side, the pellets would hit him on the front rear, right and left sides of the skull. I think Mr. Shamanna is justified in his criticism that the medical evidence in this case makes it unsafe to accept the testimony of the eye witnesses in spite of their apparently consistent version.
46. The learned Government Pleader contended that as P.W. 5 the Doctor was not a Graduate but only an L.M.P. and as he was not a person of much experience not much weight should be attached to his opinion. I think the prosecution cannot get over the medical evidence by merely characterising the Doctor as not a sufficiently qualified person. If the prosecution felt so, it should have examined a more competent and experienced Doctor to establish that the injuries noticed on the person of P.W. 8 could be caused by a gunshot in the manner alleged by the prosecution
47. Mr. Shamanna drew my attention to the following passage in the first Information report. Ex. P-2 which reads:
Then we sent one Mugappa of our village to Dharwar and secured an Ambulance van, placed my younger brother in the said van, brought him to the civil hospital, Dharwar, and produced him in the Hospital for treatment.
48. Mr. Shamanna contended that from the above passage it could be inferred that the first information report was not prepared before P.W. 3 Channabasappa was taken to the Hospital, as alleged by the prosecution, but only after he was so taken. There is considerable force in this contention of Mr. Shamanna. If the first information report was prepared before P.W. 3 was taken to the hospital, the fact of his being taken to the hospital could not have been stated in anticipation in the first information report. It is very unlikely that P.W. 2, Irappa would have stated in the first information report what he intended to do, namely to remove his brother to the hospital. Before the Committal Court, also P.W. 2 Irappa, has stated as follows:
I see the signature shown to me (Ex. P-2) and it was put by me in the hospital'. He tried to explain away this admission by saying that he might have stated so due to confusion and that he had clarified the position in his re-exanimation before court. If the reasonable conclusion from the aforesaid passage in the first information report, is that it was prepared after P.W. 3 Channabasappa was brought to the hospital, the value of the first information report is considerably weakened as it was not prepared soon after the occurrence.
49. Mr. Shamanna also commented on the conduct of the prosecution in not seizing the cart and examining it to find if there were any blood stains or marks of gunshot on it It seems to me that there is considerable force in this contention also. Since the prosecution case is that the accused shot at P.W. 3 Channabasappa while he was sitting in the cart, the examination of this cart would have furnished valuable material and the failure on the part of the prosecution to seize the cart and examine it, is a serious omission in the investigation though that by itself may not be sufficient to discredit the prosecution case.
50. Mr, Shamanna also stated that there were the improbabilities in the prosecution case:
(i) If the accused intended to shoot at P. W. 2 Irappa from a close range, it is very unlikely that they would have missed the aim and that P. W. 3 Channabasappa who was sitting in the rear portion of the cart would have received the gunshot while P. W. 7 Mushappa who was sitting in between two brothers would remain uninjured;
(ii) if the accused intended to kill or injure P, W. 2 Irappa, it is very unlikely that they would not have shot at him again when the shot fired by each of them missed him.
(iii) After chasing for some distance the cart in which P. W. 2 Irappa and P. W, 7 Mushappa were sitting it is unlikely that the accused would not have pursued P. W. 2 Irappa when he jumped out of the cart and began to run.
51. The learned Government Pleader tried to explain the first of these circumstances by stating that as the cart was moving, there was nothing improbable in both the accused missing the aim and the gunshot having hit P. W. 3 Channabasappa instead of P. W. 2 Irappa. But, it is rather difficult to accept this explanation as the shot was fired from a distance of 6 to 7 feet only.
52. Regarding the second circumstance, the explanation offered by the learned Government Pleader was that as the bullocks were scared: and began to run the accused might not have had enough time to reload their firearms to open fire before P. W. 2 Irappa jumped out of the cart and began to run. There is some force in this explanation.
53. Regarding the third circumstance, all that the learned Government Pleader stated was that the accused might have changed their minds and might not have pursued P, W. 2 Irappa. This explanation is rather unconvincing.
54. Considering the entire evidence and the probabilities of the case, it cannot be said that the prosecution has proved beyond all reasonable doubt, the charge against the accused. The accused are therefore entitled to the benefit of doubt and must be acquitted. If the prosecution has not established that accused 1 used the Gun (M. O. 1) in the manner stated by the prosecution, the charge under Section 27, of the Arms Act, 1959 must also fail.
55. In the result, this appeal is allowed, the conviction of the appellants and the sentences awarded to them are set aside. Their bail bonds shall stand cancelled.