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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 43 OF 2010
UMESH SINGH … APPELLANT
Vs.
STATE OF BIHAR … RESPONDENT
J U D G M E N T
V. Gopala Gowda, J.
This appeal is filed by the appellant aggrieved by
the common judgment dated 22nd May, 2003 passed in
Crl.A.Nos. 241, 247, 271 and 318 of 1998 in affirming
the conviction and sentence of the appellant for the
offence punishable under Section 302 read with Section
34 I.P.C. and Section 27 of the Arms Act urging
various facts and legal contentions. The appellantPage 2
Crl. A. No. 43 of 2010
herein was the appellant in Crl.A.No.318 of 1998
before the High Court. The impugned judgment passed in
the said case is under challenge in this appeal.
2. The brief facts in relation to the prosecution
case are stated hereunder to appreciate the rival
legal contentions that are urged on behalf of the
parties with a view to find out as to whether this
Court is required to interfere with the concurrent
finding of fact recorded in affirming the conviction
and sentence imposed against the appellant.
3. The deceased Shailendra Kumar was murdered on
16.07.1996 at about 3.30 p.m. by the appellant Umesh
Singh and other persons, namely, Awadhesh Singh,
Sudhir Singh, Jaddu Singh, Nawal Singh, Binda Singh @
Bindeshwari Singh by shooting him with a revolver and
rifle with a criminal intention for unlawful purpose
in furtherance of common intention along with other
accused and to have in their possession of fire arms
with an intention to use it for an unlawful purpose to
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Crl. A. No. 43 of 2010
commit murder of Shailendra Kumar along with accused
nos.5 & 6 and another accused Moti Singh who is dead.
They were charged under Section 302 read with Section
34, IPC. The case of the prosecution is that the
deceased along with his cousin brother Arvind KumarPW2 were going to Tungi for catching a bus for Kothar
on 16.7.96 at about 3.30 p.m. When they proceeded at a
distance ahead of Tungi High School near Latawar
Payeen, the accused persons named above surrounded
them. The deceased accused Moti Singh is alleged to
have exhorted his other associates to shoot the
deceased Shailendra Kumar upon which the appellant
herein took out a country made revolver and pumped its
bullets in the temple of the deceased and accused no.2
who was having a rifle in his hand fired in the
abdomen of the deceased. Accused no.4 also shot a
fire causing injury in the leg of the deceased while
accused no.3 also fired from his rifle. Accused no.5
was also having a rifle and he threw the dead body of
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Crl. A. No. 43 of 2010
the deceased in the Payeen. It is also the case of the
prosecution that during the course of the occurrence
of the incident the informant PW2 Arvind Kumar was
kept over-powered by the deceased accused Moti Singh
and Jaddu Singh and after accomplishing the target,
they left. Further, the witnesses whose names were
found in the fardbeyan claimed to have seen the
occurrence of the incident. The fardbeyan was recorded
by ASI RS Singh at about 7.00 p.m. on the same date at
Tungi High School hostel, Latawar Payeen and the
inquest report of the dead body was also prepared at
the place of occurrence itself at 7.10 p.m. Seizure
list of certain incriminating items including empty
fired cartridges which were recovered from the spot
was also prepared. Formal FIR was recorded and
investigation was taken up by the police. On
concluding the investigation, the police submitted the
charge sheet before the learned Chief Judicial
Magistrate on the basis of which cognizance was taken
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by him and the case was committed to the Court of
Sessions. The learned Sessions Judge on his turn
transferred the case to the file of Second Additional
Sessions Judge, Nawadah and the charges were framed
for the offence under Section 302 read with Section
34, IPC and Section 27 of the Arms Act. The accused
pleaded not guilty. The case went for trial and the
prosecution has examined the witnesses PW1 to PW9 and
two witnesses were examined in support of the defence.
The learned Additional Sessions Judge on appraisal of
the evidence and record passed the judgment dated
04.04.1998 imposing the conviction and sentence
against the accused persons under Section 302 read
with Section 34, IPC and under Section 27 of the Arms
Act and awarded sentence of imprisonment for life
under Section 302 read with Section 34, IPC. The
sentence awarded regarding the conviction under
different heads of charges ordered were to run
concurrently. The conviction and sentence passed by
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the Additional Sessions Judge was challenged by the
accused in the appeals referred to supra before the
High Court of Patna. The High Court after hearing all
the accused/appellants passed the common judgment
affirming the conviction and sentence in relation to
the present appellant and set aside the conviction and
sentence in so far as Awadhesh Singh, Jaddu Singh and
Nawal Singh who were held to be not found guilty of
the charges under Section 302 read with section 34,
IPC, i.e. in the appeal nos.241/98 and 247/98.
However, as far as the present appellant and others
are concerned, the judgment passed by the learned
Additional Sessions Judge was affirmed. During
pendency of the appeals the accused by name, Moti
Singh died and his appeal got abated.
4. The appellant has questioned the correctness of
the findings recorded in the impugned judgment by the
High Court in affirming the conviction and sentence
awarded against him along with others. Mr. Amarendra
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Sharan, learned senior counsel appearing for the
appellant contends that the High Court has failed to
notice the discrepancies in the evidence of the
prosecution witnesses, it could have disbelieved the
same but it has affirmed the conviction and sentence
on this appellant. Further, even according to its own
findings there were no eye-witnesses to the occurrence
of the incident as the PWs arrived at the scene of
occurrence 15-20 minutes after the incident and the
informant who was present at the spot has given
different version in the evidence and the FIR
regarding the role of the appellant. The statement of
PW2 Arvind Kumar who is the cousin brother of the
deceased is the basis on which the FIR was registered
and the Investigation of the case was made by the
Investigating Officer. The PW2 was present at the
time of occurrence and on the basis of his statement,
the accused persons have been falsely implicated in
treating his statement as FIR, the same is belated FIR
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which is not admissible in law and also hit by Section
162, Cr.P.C. In support of this contention he has
placed reliance upon the judgment of this Court in
State of A.P. v. Punati Ramulu.1 The relevant
paragraphs read as under:
“3. In our opinion, the reasons recorded by the High Court for
recording acquittal of the respondents is based on proper
appreciation of evidence. The findings are not only supported
by proper appreciation of the evidence but are also reasonable
and sound. Thanks to the tainted investigation, the murder of
Krishna Rao goes unpunished. But we must hasten to add that
since the defence has been able to successfully challenge the
bona fides of the police investigation, it has detracted
materially from the reliability of the other evidence led by the
prosecution also.
5. Once we find that the investigating officer has deliberately
failed to record the first information report on receipt of the
information of a cognizable offence of the nature, as in this
case, and had prepared the first information report after
reaching the spot after due deliberations, consultations and
discussion, the conclusion becomes inescapable that the
investigation is tainted and it would, therefore, be unsafe to
rely upon such a tainted investigation, as one would not know
where the police officer would have stopped to fabricate
evidence and create false clues. Though we agree that mere
relationship of the witnesses PW 3 and PW 4, the children of
the deceased or of PW 1 and PW 2 who are also related to the
1 (1994) Suppl.1 SCC 590
8Page 9
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deceased, by itself is not enough to discard their testimony and
that the relationship or the partisan nature of the evidence only
puts the Court on its guard to scrutinise the evidence more
carefully, we find that in this case when the bona fides of the
investigation has been successfully assailed, it would not be
safe to rely upon the testimony of these witnesses either in the
absence of strong corroborative evidence of a clinching nature,
which is found wanting in this case.”
5. It was further contended by the learned senior
counsel that the earlier information given by PW4 to
the police was suppressed and by that time PW9- I.O.
had reached the scene of occurrence, the other police
officer and S.P. of the District were very much
present there. They were not examined in the case to
prove the prosecution case against the accused. Nonexamination of the above persons as prosecution
witnesses who are material witnesses to prove the
prosecution case is fatal to the case as has been held
by this Court in the case reported in Mussauddin Ahmed
v. State of Assam2. The relevant paragraph of the
abovementioned case reads as under:
2 (2009) 14 SCC 541
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“11. It is the duty of the party to lead the best evidence in its
possession which could throw light on the issue in controversy
and in case such material evidence is withheld, the court may
draw adverse inference under Section 114 Illustration (g) of
the Evidence Act, 1872 notwithstanding that the onus of proof
did not lie on such party and it was not called upon to produce
the said evidence (vide Gopal Krishnaji Ketkar v. Mohd. Haji
Latif).”
6. The learned senior counsel for the appellant
further contended that not recording the information
furnished by PW4 to the police as FIR but treating PW2
information as FIR in the case though it is hit by
Section 162, Cr.P.C. creates doubt in the prosecution
case and therefore benefit of doubt must be given to
the accused by the trial court and the High Court. In
support of the same, the learned senior counsel has
placed reliance upon the judgment of this Court
reported in T.T. Antony v. State of Kerala3. The
relevant paragraphs are extracted hereunder:
“18. An information given under sub-section (1) of Section 154
CrPC is commonly known as first information report (FIR)
though this term is not used in the Code. It is a very important
document. And as its nickname suggests it is the earliest and
the first information of a cognizable offence recorded by an
3 (2001) 6 SCC 181
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officer in charge of a police station. It sets the criminal law in
motion and marks the commencement of the investigation
which ends up with the formation of opinion under Section 169
or 170 CrPC, as the case may be, and forwarding of a police
report under Section 173 CrPC. It is quite possible and it
happens not infrequently that more informations than one are
given to a police officer in charge of a police station in respect
of the same incident involving one or more than one cognizable
offences. In such a case he need not enter every one of them
in the station house diary and this is implied in Section 154
CrPC. Apart from a vague information by a phone call or a
cryptic telegram, the information first entered in the station
house diary, kept for this purpose, by a police officer in charge
of a police station is the first information report — FIR
postulated by Section 154 CrPC. All other informations made
orally or in writing after the commencement of the
investigation into the cognizable offence disclosed from the
facts mentioned in the first information report and entered in
the station house diary by the police officer or such other
cognizable offences as may come to his notice during the
investigation, will be statements falling under Section 162
CrPC. No such information/statement can properly be treated
as an FIR and entered in the station house diary again, as it
would in effect be a second FIR and the same cannot be in
conformity with the scheme of CrPC. Take a case where an FIR
mentions cognizable offence under Section 307 or 326 IPC and
the investigating agency learns during the investigation or
receives fresh information that the victim died, no fresh FIR
under Section 302 IPC need be registered which will be
irregular; in such a case alteration of the provision of law in the
first FIR is the proper course to adopt. Let us consider a
different situation in which H having killed W, his wife, informs
the police that she is killed by an unknown person or knowing
that W is killed by his mother or sister, H owns up the
responsibility and during investigation the truth is detected; it
does not require filing of fresh FIR against H — the real
offender — who can be arraigned in the report under Section
173(2) or 173(8) CrPC, as the case may be. It is of course
permissible for the investigating officer to send up a report to
the Magistrate concerned even earlier that investigation is
being directed against the person suspected to be the accused.
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19. The scheme of CrPC is that an officer in charge of a police
station has to commence investigation as provided in Section
156 or 157 CrPC on the basis of entry of the first information
report, on coming to know of the commission of a cognizable
offence. On completion of investigation and on the basis of the
evidence collected, he has to form an opinion under Section
169 or 170 CrPC, as the case may be, and forward his report to
the Magistrate concerned under Section 173(2) CrPC. However,
even after filing such a report, if he comes into possession of
further information or material, he need not register a fresh
FIR; he is empowered to make further investigation, normally
with the leave of the court, and where during further
investigation he collects further evidence, oral or documentary,
he is obliged to forward the same with one or more further
reports; this is the import of sub-section (8) of Section 173
CrPC.
20. From the above discussion it follows that under the scheme
of the provisions of Sections 154, 155, 156, 157, 162, 169, 170
and 173 CrPC only the earliest or the first information in regard
to the commission of a cognizable offence satisfies the
requirements of Section 154 CrPC. Thus there can be no
second FIR and consequently there can be no fresh
investigation on receipt of every subsequent information in
respect of the same cognizable offence or the same occurrence
or incident giving rise to one or more cognizable offences. On
receipt of information about a cognizable offence or an incident
giving rise to a cognizable offence or offences and on entering
the FIR in the station house diary, the officer in charge of a
police station has to investigate not merely the cognizable
offence reported in the FIR but also other connected offences
found to have been committed in the course of the same
transaction or the same occurrence and file one or more
reports as provided in Section 173 CrPC.”
Also, the Patna High Court, in the case of Deo Pujan Thakur v.
State of Bihar4
, opined as hereunder:
4 (2005) Crl.L.J. Patna 1263
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“18. Considering the entire evidence on record and the
circumstances which has been brought by the defence in course
of argument it transpires that the prosecution with held the first
information and did not produce it before the Court for the
reasons best known to it. It did not examined independent
witness though some of these names have been mentioned in
the evidence of the prosecution witnesses and some of them
even then were charge- sheet witness only family members and
interested witnesses who are inimical have been examined. The
fardbeyan on the basis of which formal FIR was drawn is hit by
Section 162, Cr PC. The post-mortem report as well as the
evidence of PW 11 has corroborated the defence version of the
case that the deceased was killed at a lonely place when he was
coming after attending the call of nature. In the circumstances
of the case the prosecution version is not reliable. The evidence
which has been brought by the prosecution has failed to prove
its case beyond all reasonable doubt. The judgment and order of
conviction passed by the trial Court is not fit to be maintained.”
7. It was further contended by the learned senior counsel
that the other PWs who were highly interested were examined in
the case. The independent witnesses were available but were
not examined in the case by the prosecution. Therefore, the
prosecution case is fatal for non examination of the
independent witnesses to prove the charge against
the accused. Hence, the concurrent finding recorded
by the High Court on the charge under Section 302
read with Section 34 against the appellant is
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erroneous in law. The High Court has failed to
take into consideration the evidence of PW2 who,
according to the prosecution, is an informant. In
his evidence he has stated that the dead body was
recovered thereafter the statement of PW2 was
recorded and he along with the other witnesses
remained at the place of occurrence and none of
them went to Police Station to inform the police.
PW3 Damodar Singh in his evidence has stated that
no body went to inform the police but PW4 Ashok
Kumar has admitted in his evidence that his
statement was recorded by a Judicial Magistrate
where he had stated that he sent information to the
police. PW9-I.O. has admitted in his evidence that
on the information of Ashok Singh-PW4 he along with
Officer-in-charge of the police station and several
officers had gone to the place of occurrence before
the fardbeyan was recorded and the case was
registered. He has further stated that the
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fardbeyan was `sent to police station and then he
was made as I.O. Further the High Court has failed
to take into consideration the relevant aspect of
the matter mentioned in the FIR under Column No.I
fardbeyan was recorded at 7.00 p.m. and FIR was
registered at 10.00 p.m. on 16.07.1996. The
distance of the place of occurrence and the police
station is about 16 kms. According to PW9, the
I.O. on 16.07.1996 after 10 p.m. he was changed,
therefore, learned senior counsel submits that on
the basis of the evidence of PW4 Ashok Kumar and
PW9 and in the light of the principles decided by
this Court in the decisions referred to supra
registering the FIR on the basis of statement of
PW2 is not admissible in law as the same is hit by
Section 162, Cr.P.C. In view of the aforesaid
facts and legal evidence regarding registration of
the FIR by the police the learned Additional
Sessions Judge and the High Court should have drawn
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judicial inference that registering the FIR on the
basis of statement of PW2, which is hit by Section
162, Cr.P.C. is the result of manipulation of the
case against the accused at the instance of the
witnesses of this case and not registering the
first information given by PW4 to the police
station for the reason that it was hearsay. This
vital important aspect of the matter has been
omitted by the Additional Sessions Judge and the
High Court. Therefore, the finding recorded in the
impugned judgment on the charge leveled against the
appellant and others is erroneous in law and the
same is liable to be set aside. Further, the courts
below have failed to appreciate the fact that there
was no motive for the appellant to murder the
deceased Shailendra Kumar but there is motive for
false implication of the accused by the witnesses
in this case. The learned senior counsel placed
reliance upon PW4 Ashok Kumar’s evidence wherein he
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has stated that Awadh Singh is the brother of
accused Binda Singh who had brought a case against
him and accused Umesh Singh and Bhuneshwar Singh,
father of Nawal were witness and PW5 Balram Singh
who is full brother of deceased Shailendra Kumar
has admitted in his evidence that there was no
enmity with accused and himself and also with his
two brothers, including the deceased.
8. Further the learned senior counsel contended that
the High Court has failed to consider the medical
evidence, which does not support the prosecution case.
According to the prosecution, the occurrence of
incident is said to have taken place on 16.07.1996 at
3.30 p.m. when the deceased was going to join his duty
from his village home. On the basis of the post
mortem report on record, in Column Nos.21 to 23, PW8,
the doctor clearly stated that not only stomach of the
deceased but both bladders were empty and the time
elapsed since death was 30 to 36 hours. Thereby the
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occurrence of the incident must have taken place in
the early hours of 16.07.1996 as the deceased must
have empty stomach. Further, in the evidence of PW8,
the description of the injuries in the post mortem
report are also not in accordance with the allegations
made by the witnesses. PW8 the doctor, has
categorically admitted in his evidence that the
deceased must have died before 30 hours from the time
of the post mortem examination. It means that no
occurrence of the incident took place at 3.30 p.m. on
16.07.1996 as alleged by the prosecution and the
deceased was dead before the alleged time of
occurrence. Therefore, the medical evidence is not in
conformity with the prosecution case rather it
supports the defence version making the entire
prosecution case false. In this regard he has placed
strong reliance upon the proposition of law laid by
this Court to the effect that once the time of death
as claimed by the prosecution is drastically different
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from the one as per the medical evidence, the case of
the prosecution becomes doubtful and the benefit of
doubt must be given to the appellant. He has placed
reliance upon the following decisions of this Court,
namely, Thangavelu v. State of TN5, Moti v. State of
U.P.6, Kunju Mohd. v. State of Kerala7, Virendra v.
State of U.P.8 and Baso Prasad v. State of Bihar.
9
9. Therefore, the learned senior counsel submits that
the concurrent finding of fact on the charge recorded
by the High Court against this appellant is erroneous
and vitiated in law which is liable to be set aside
and he may be acquitted of the charges leveled against
him and he may be set at liberty by allowing this
appeal.
10. On the other hand, Mr.Chandan Kumar, the learned
counsel appearing on behalf of the State sought to
justify the finding and reasons recorded in the
5
(2002) 6 SCC 498
6
(2003) 9 SCC 444
7
(2004) 9 SCC 193
8
(2008) 16 SCC 582
9
(2006) 13 SCC 65
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impugned judgment, inter alia, contending that the
High Court in exercise of its appellate jurisdiction
has examined the correctness of the findings and
reasons recorded by the learned Sessions Judge on the
charges framed against the appellant and on proper
appraisal of the same, it has affirmed the conviction
and sentence imposed against the appellant which is
based on proper re-appreciation of evidence on record.
The same is supported with valid and cogent reasons.
Learned counsel further sought to justify registration
of FIR on the basis of the information furnished by
PW2 which is in conformity with the decision of this
Court in Binay Kumar v. State of Bihar10 relevant
paragraph of which reads as under:
“9. But we do not find any error on the part of the police in not
treating Ext. 10/3 as the first information statement for the
purpose of preparing the FIR in this case. It is evidently a
cryptic information and is hardly sufficient for discerning the
commission of any cognizable offence therefrom. Under Section
154 of the Code the information must unmistakably relate to
the commission of a cognizable offence and it shall be reduced
to writing (if given orally) and shall be signed by its maker. The
10 (1997) 1 SCC 283
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next requirement is that the substance thereof shall be entered
in a book kept in the police station in such form as the State
Government has prescribed. First information report (FIR) has
to be prepared and it shall be forwarded to the magistrate who
is empowered to take cognizance of such offence upon such
report. The officer in charge of a police station is not obliged to
prepare FIR on any nebulous information received from
somebody who does not disclose any authentic knowledge
about commission of the cognizable offence. It is open to the
officer-in-charge to collect more information containing details
about the occurrence, if available, so that he can consider
whether a cognizable offence has been committed warranting
investigation.”
11. Further, the correctness of the same is sought to
be justified by placing reliance upon the I.O.’s
evidence. The counsel for the state has placed
reliance upon the decision of this Court in Dinesh
Kumar v. State of Rajasthan11. The relevant paragraphs
are extracted hereunder:
“11. It is to be noted that PWs 7 and 13 were the injured
witnesses and PW 10 was another eyewitness and was the
informant. Law is fairly well settled that even if acquittal is
recorded in respect of the co-accused on the ground that there
were exaggerations and embellishments, yet conviction can be
recorded if the evidence is found cogent, credible and truthful
in respect of another accused. The mere fact that the witnesses
were related to the deceased cannot be a ground to discard
their evidence.
11 (2008) 8 SCC 270
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12. In law, testimony of an injured witness is given
importance. When the eyewitnesses are stated to be interested
and inimically disposed towards the accused, it has to be noted
that it would not be proper to conclude that they would shield
the real culprit and rope in innocent persons. The truth or
otherwise of the evidence has to be weighed pragmatically. The
court would be required to analyse the evidence of related
witnesses and those witnesses who are inimically disposed
towards the accused. But if after careful analysis and scrutiny
of their evidence, the version given by the witnesses appears
to be clear, cogent and credible, there is no reason to discard
the same. Conviction can be made on the basis of such
evidence.”
12. The learned counsel further submits that the
dispute regarding the place of incident as contended
by the learned counsel for the appellant is factually
not correct. In view of the concurrent finding of the
High Court regarding the place of occurrence is very
much certain as it is said to be at Tungi. PW4 Ashok
Kumar Singh in his evidence has categorically stated
that he is not an eye-witness but on the basis of
hearsay he has informed the police. The I.O. has
further stated in his evidence that PW4 is a hearsay
witness and therefore his information could not have
been treated as FIR. Hence he has requested this
Court that there is no merit in this appeal,
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particularly, having regard to the concurrent finding
on the charge by the High Court on proper appreciation
of legal evidence and record and affirming the
conviction and sentence for charge under Section 302
read with Section 34, IPC. Hence, the learned senior
counsel has requested this Court not to interfere with
the same in exercise of its jurisdiction.
13. In the backdrop of the rival legal contentions
urged on behalf of the parties this Court has
reasonably considered the same to answer the point
which is formulated above in this judgment and answer
the same against the appellant for the following
reasons.
14. PW2 Arvind Kumar, who is the cousin brother of the
deceased, accompanied him on the date of occurrence of
the incident. At that point of time the appellant,
along with other accused, surrounded them and it is
stated that the appellant shot at the Kanpatti with
revolver and other accused persons Binda Singh with
23Page 24
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the rifle in the stomach of the deceased and Sudhir
Singh with rifle in the left thigh. PW7 has stated in
his evidence that the aforesaid accused persons fled
away at that time Ashok Singh, Damodar Singh, Balram
Singh and Shyam Sunder Singh were going to the bazaar
who have witnessed the incident. His evidence is
supported by the evidence of the other witness namely
PW3, who has stated that he has seen Moti Singh and
Jaddu Singh catching both hands of the deceased and
Moti Singh ordered him to fire and the said witness
also spoken about the firings by Awadhesh Singh and
Nawal Singh as stated by the PW2. Further, he has
supported his evidence that Awadhesh Singh pushed the
dead body in the Payeen and also stated that Moti
Singh and Jaddu Singh had caught hold of the informant
also. PW5 also claimed to have seen Jaddu Singh and
Moti Singh catching hands of the deceased and further
he has stated that Umesh Singh, the appellant herein,
had fired at the temple region of the deceased.
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Further, he has given categorical statement stating
that Binda, Sudhir, Awadhesh and Nawal also had fired
at the deceased with their rifles. Therefore, the
evidence of PW2 has been supported by PW3, PW5 and
PW7. In so far as PW6 is concerned he has given a
general statement that he has seen the several persons
surrounding the deceased and killing the deceased with
rifle and revolver. Therefore, the trial court was
right in recording the finding on the charge against
the appellant on proper appraisal of the evidence of
the eye-witness PW2 supported by PW3 and PW5. The
said finding of fact on the charge of Sections 302
read with section 34, IPC against this appellant and
others was seriously examined by the High Court and
concurred with the same and in view of the evidence of
PW2 and PW9 the informant who was eye-witness and the
I.O.’s evidence regarding his evidence treating the
statement of PW2 as FIR is perfectly legal and valid.
Therefore, reliance placed upon the decisions of this
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Court referred to supra by the learned Senior Counsel
in the course of his submission are not tenable in law
as they are misplaced.
15. In so far as the medical evidence of the DoctorPW8 read with the post mortem report upon which strong
reliance is placed by the learned senior counsel for
the appellant that death must have taken place prior
to 30 to 36 hours as opined by the doctor that means
it relates back to the early hours of 16.07.1996 but
not at 3.30 p.m. as mentioned in the FIR. Once the
time of death is drastically different from the one
claimed by the prosecution its case is vitiated in
law. In support of the above-said contention strong
reliance placed upon the decisions of this Court on
aforesaid cases are all misplaced as the same are
contrary to the law laid down by this Court in Abdul
Sayeed v State of Madhya Pradesh12. The relevant
paragraphs are extracted hereunder:
12 (2010) 10 SCC 259
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“33. In State of Haryana v. Bhagirath it was held as follows:
(SCC p. 101, para 15)
“15. The opinion given by a medical witness need not
be the last word on the subject. Such an opinion shall
be tested by the court. If the opinion is bereft of logic or
objectivity, the court is not obliged to go by that
opinion. After all opinion is what is formed in the mind
of a person regarding a fact situation. If one doctor
forms one opinion and another doctor forms a different
opinion on the same facts it is open to the Judge to
adopt the view which is more objective or probable.
Similarly if the opinion given by one doctor is not
consistent with probability the court has no liability to
go by that opinion merely because it is said by the
doctor. Of course, due weight must be given to opinions
given by persons who are experts in the particular
subject.”
34. Drawing on Bhagirath case, this Court has held that where
the medical evidence is at variance with ocular evidence,
“it has to be noted that it would be erroneous to accord undue
primacy to the hypothetical answers of medical witnesses to
exclude the eyewitnesses' account which had to be tested
independently and not treated as the ‘variable’ keeping the
medical evidence as the ‘constant’ ”.
35. Where the eyewitnesses' account is found credible and
trustworthy, a medical opinion pointing to alternative
possibilities cannot be accepted as conclusive. The
eyewitnesses' account requires a careful independent
assessment and evaluation for its credibility, which should not
be adversely prejudged on the basis of any other evidence,
including medical evidence, as the sole touchstone for the test
of such credibility.
“21. … The evidence must be tested for its inherent
consistency and the inherent probability of the story;
consistency with the account of other witnesses held to
27Page 28
Crl. A. No. 43 of 2010
be creditworthy; consistency with the undisputed facts,
the ‘credit’ of the witnesses; their performance in the
witness box; their power of observation, etc. Then the
probative value of such evidence becomes eligible to be
put into the scales for a cumulative evaluation.”
36. In Solanki Chimanbhai Ukabhai v. State of Gujarat this
Court observed: (SCC p. 180, para 13)
“13. Ordinarily, the value of medical evidence 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 is to prove that the injuries could not possibly
have been caused in the manner alleged and thereby
discredit the eyewitnesses. Unless, however the medical
evidence in its turn goes so far that it completely rules
out all possibilities whatsoever of injuries taking place
in the manner alleged by eyewitnesses, the testimony
of the eyewitnesses cannot be thrown out on the
ground of alleged inconsistency between it and the
medical evidence.”
39. Thus, the position of law in cases where there is a
contradiction between medical evidence and ocular evidence
can be crystallised to the effect that though the ocular
testimony of a witness has greater evidentiary value vis-à-vis
medical evidence, when medical evidence makes the ocular
testimony improbable, that becomes a relevant factor in the
process of the evaluation of evidence. However, where the
medical evidence goes so far that it completely rules out all
possibility of the ocular evidence being true, the ocular
evidence may be disbelieved.”
16. The learned State counsel has rightly urged that
if the medical and ocular evidence is contrary then
the ocular evidence must prevail. This aspect of the
28Page 29
Crl. A. No. 43 of 2010
matter has been elaborately discussed and the
principle is laid down by this Court in the aforesaid
decision. The findings and decision recorded and
rendered by the learned Additional Sessions Judge
after thorough discussion and on proper appreciation
of evidence on record held that the doctor has opined
that rigor mortis starts within 1 to 3 hours and
vanishes after 36 hours. The said opinion of the
medical officer PW8 regarding complete vanishing of
rigor mortis from the dead body after 36 hours is
medically not correct and this may be lack of his
knowledge on the subject and he was liberal to the
cross-examination by the defence lawyer. Further the
learned Additional Sessions Judge has rightly referred
to Medical Jurisprudence Digest written by B.L. Bansal
Advocate, (1996 Edition at page 422), which clearly
mentions that the rigor mortis persists from 12 to 24
hours and then passes off but it means that the faster
the rigor mortis appears, the shorter time it
29Page 30
Crl. A. No. 43 of 2010
persists. Further, rightly the learned Additional
Sessions Judge has referred to the case decided by
this Court in Boolin Hulder v. State13
wherein it has
been held that
at the same climate of India, rigor
mortis may commence in an hour to two and begin to
disappear within 18 to 24 hours.
Therefore, the
learned Additional Sessions Judge has held that
broadly speaking the faster the rigor mortis appears,
the shorter the time it persists and further has
rightly made observation that rigor mortis will be
present in some parts of legs of the dead body.
According to the medical officer PW8 there is no
question of the time of death of the deceased.
It
must have preceded more than 24 hours which is the
maximum limit for disappearance of rigor mortis. The
said view of the medical officer PW8 was found fault
with by the learned Additional Sessions Judge and held
that he has not correctly deposed in his cross-
13 1996 Crl.L.J. 513
30Page 31
Crl. A. No. 43 of 2010
examination regarding the time lapse of a dead person.
He has extended the time for rigor mortis to be 30 to
36 hours and further rightly held that PW8 the medical
officer, has deposed in his evidence contrary to the
rule of medical jurisprudence. Therefore, the learned
Additional Session Judge has rightly held in the
impugned judgment the same cannot be the basis for the
defence to acquit the accused.
The claim by the
appellant that the deceased has been killed in the
early morning of 16.07.1996 and the allegation that
the accused has been falsely implicated in the case
has been rightly rejected by the learned Additional
Sessions Judge and the same has been concurred with by
the High Court by assigning the valid and cogent
reasons in the impugned judgment.
Rightly, the learned
counsel appearing on behalf of the State has placed
reliance upon the judgment of this Court referred to
supra that between medical and ocular evidence the
ocular evidence must be preferred to hold the charge
31Page 32
Crl. A. No. 43 of 2010
proved. This is the correct legal position as held by
both the learned Additional Sessions Judge as well as
the High Court after placing reliance upon the
statement of evidence of PW2, PW3, PW5 and PW7.
Therefore, we do not find any erroneous reasoning on
this aspect of the matter. There is no substance in
submissions of the learned senior counsel on the above
aspect of the matter with reference to judgments of
this Court referred to supra which decisions have
absolutely no application to the facts situation of
the case on hand.
17. In view of the concurrent findings by the High
Court as well as the learned Additional Sessions Judge
and an order of conviction and sentence imposed
against the appellant herein is on the basis of legal
evidence on record and on proper appreciation of the
same. Therefore, the same is not erroneous in law as
the finding is supported with valid and cogent
reasons. For the foregoing reasons the impugned
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Crl. A. No. 43 of 2010
judgment and order cannot be interfered with by this
Court. Hence, the appeal is devoid of merit and
accordingly it is dismissed.
……………………………………..J.
[ CHANDRAMAULI KR. PRASAD]
………………………………………J.
[V. GOPALA GOWDA]
New Delhi,
March 22, 2013
33
