Information given to police on basis of hearsay- not liable to be treated as
FIR – Treating statement of eyewitness, though recorded later in point of time,
as FIR – Justified.
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, 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.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 43 OF 2010
UMESH SINGH … APPELLANT
Vs.
STATE OF BIHAR … RESPONDENT
Citation;AIR 2013 SC 1743
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
appellant 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 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 Kumar-
PW2 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 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 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 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 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 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
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.
Non-examination 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 Assam[2]. The relevant paragraph of the abovementioned case reads
as under:
“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 Kerala[3].
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 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.
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
Bihar[4], opined as hereunder:
“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 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
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 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 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
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 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 TN[5], Moti v. State of U.P.[6],
Kunju Mohd. v. State of Kerala[7], 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 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 Bihar[10] 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 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
Rajasthan[11]. 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.
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, 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 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. 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 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 Doctor-PW8 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 Pradesh[12]. The
relevant paragraphs are extracted hereunder:
“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 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 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 persists. Further, rightly the
learned Additional Sessions Judge has referred to the case decided by this
Court in Boolin Hulder v. State[13] 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-
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 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 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
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[1] (1994) Suppl.1 SCC 590
[2] (2009) 14 SCC 541
[3] (2001) 6 SCC 181
[4] (2005) Crl.L.J. Patna 1263
[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
[10] (1997) 1 SCC 283
[11] (2008) 8 SCC 270
[12] (2010) 10 SCC 259
[13] 1996 Crl.L.J. 513
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