Sunday 25 May 2014

Information given to police on basis of hearsay- not liable to be treated as FIR

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.


                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPEAL NO. 43 OF 2010

 UMESH SINGH                                      … APPELLANT


            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

      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

 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
   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.

                                                  [ CHANDRAMAULI KR. PRASAD]

                                                     [V. GOPALA GOWDA]
New Delhi,
March  22, 2013

[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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