Monday, 21 October 2019

Whether time of occurrence can be doubted on ground that digested food has been found in stomach of deceased?

The appellant has sought to prove that the time of death was also
not proved as evidence from P.W.1 and P.W.3 came that they had gone
to the said chawk after meal. From this part of their deposition, the
appellant wants to establish that if that was the case, the stomach of
the deceased could have residue of undigested food. But this part of

the argument has been elaborately dealt with by the High Court and in
Para 13 of its Judgment the High Court observed and held:“
13. In this regard following opinion of Modi’s Medical
Jurisprudence and Toxicology, 23rd Edition at page 450 is
very relevant:‘
It must also be remembered that the process of
digestion in normal, healthy persons may
continue for a long time after death.’
It has come in evidence that at the time of death, the deceased
was aged about 28 years. Thus it is apparent that at that time
deceased was a young man. It has also come in evidence that
the postmortem
was held on 23.1.1993 at 11 a.m. Under the
aforesaid circumstance, because the deceased was a normal
young man of 28 years of age, digestion process might have
been continuing after the death of the deceased till the period
of postmortem
and in that view of the matter only because
digested food has been found in the stomach of deceased it
cannot be held that the prosecution had failed to prove the
time of occurrence that too in view of the cogent, clear and
acceptable evidence of P.W. 1 and 3.”

NON REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 935 OF 2011

PRABHASH KUMAR SINGH  Vs  THE STATE OF BIHAR (NOW JHARKHAND) 

Aniruddha Bose, J.
Dated:September 12, 2019.

It is submitted by the learned counsel representing both the
parties that appellant No. 2 has expired. The appeal against appellant
No.2, thus, has abated.
2. Both the appellants were tried and convicted for committing
murder of one Ashok Rewani (the deceased victim) on 22nd January,
1993. The Trial Court convicted the surviving appellant under Section
302 of the Indian Penal Code, 1860 (the Code) and sentenced to
undergo imprisonment for life. We shall henceforth refer to him as the
appellant only in this order. Conviction of the deceased appellant was

under Section 302/109 of the Code and he was also ordered to
undergo the same sentence. The High Court of Jharkhand confirmed
the judgment of the Trial Court as also the order of sentence. The
place of occurrence of the offence was Mahuwar Chawk, within Harla
police station in the district of Bokaro, Jharkhand. Time of occurrence
was about 10 P.M. The case, out of which this appeal arises, was
initiated on the basis of a “Fardbeyan” of one Nun Chand Rewani, who
had deposed in the trial as P.W. 3. The “Fardbeyan” was recorded at
Bokaro General Hospital where the deceased victim was taken to by
his relatives, who at the time of occurrence were with him. Such
recording was done by a Subinspector
of the said Police Station,
Inderdeo Singh. The latter was the Investigating Officer (I.O.) and was
examined in the trial as P.W 4.
3. The prosecution case, accepted by the Trial Court as also by the
High Court, was that the deceased victim on the night of occurrence
went by a twowheeler
to the said chawk and was having tea at that
time along with P.W. 3, one Nun Chand Rewani and Rupesh Kumar
Rewani (P.W.1), nephew of the deceased victim. The former was also a
relative of the deceased victim. At the same time, as it transpires from
evidence, the second appellant (since deceased) had reached the spot
and started abusing the deceased victim. On protest by the latter, the

surviving appellant was called and was exhorted to kill the deceased
victim. The surviving appellant then took out a pistol and shot at
deceased victim. Injury was caused to his chest and he fell down.
Thereafter, the present appellant fired another shot while escaping
from the spot.
4. On completion of investigation, chargesheet
was submitted
against both the accused persons under sections 302/34 of the Code.
Charge was framed against the appellants for committing offence
under the aforesaid sections and in the case of deceased appellant,
charge under section 109 of the Code was added. Five witnesses were
examined by the prosecution, among whom P.W. 1, P.W. 2 and P.W. 3
were witnesses of fact. The I.O. and the autopsy surgeon, Dr. Satya
Narain Lal (P.W. 5) were also examined. The Trial Court found both of
them guilty. Stand of both the accused persons in response to their
examination under Section 313 of the Code of Criminal Procedure was
that of general denial.
5. The prosecution version was that the deceased was killed in close
range firing by appellant at the instigation of the deceased appellant,
who was his father. Conviction of the appellant was primarily based on
eyewitness account of the incident or deposition of P.W. 1 and P.W. 3 at the trial. The cause of death, being hemorrhage and shock caused
by bullet injury from firearm, has been established by the P.W. 5. His
deposition largely corroborates the postmortem
report (Ext.4). Apart
from injuries, both external and internal in the chest region of the
deceased victim, the postmortem
report revealed that his second rib
was fractured. Digested food was present in his stomach. There was,
however, no exit wound.
6. Learned Counsel appearing for the appellant has sought to assail
the judgment under appeal mainly on argument of inconclusive
medical evidence to connect killing of the deceased victim with bullet
injury. Submission of the learned counsel for the appellant is that the
nature of injury was such that it could not have come from a close
range firing, in that there was no charring on the body of the
deceased. The bullet or any part thereof was also not recovered.
Moreover, there was no collection of any material having blood
component in it. The standard defence of unidentifiability of the
accused persons by the eyewitnesses, time of occurrence of the
incident being night time, was also taken in course of hearing before
us.
7. So far as the evidence of P.W.1 and P.W.3 are concerned, we do

not find much inconsistency on their presence at the location at the
time of occurrence. No contrary suggestion was put to them at the
time of crossexamination.
The surviving appellant has been identified
by both these eyewitnesses. An alternative motive was sought to be
made out for causing death of the victim, being his relationship with a
girl coming from an indigenous tribe. Case of the appellant is that he
was in no way connected with the said cause and he was falsely
implicated. Learned counsel for the appellant has argued that the
assailant must have been someone else because of the aforesaid
relationship related dispute. It has been pointed out by the appellant’s
counsel that there was no evidence of any scuffle which could have
had resulted in fracture of rib. On this reasoning also, argument on
false implication of the appellant has been advanced. But, on the
aspect of relationship of the deceased victim with a girl coming from
an indigenous tribe, barring suggestion to that effect in course of
crossexamination
of P.W. 2 and P.W.3, no other evidence has been
led. So we find no reason to examine this plea at this stage.
8. As regards nature of injury, the gunshot
injury being cause of
death has been established by the postmortem
report as well as
deposition of the autopsy surgeon. Argument has also been advanced
on behalf of the appellant that the injury did not bear the typical

characteristic that came from close range bullet firing. But we do not
find any clear cut suggestion being given to the Doctor (P.W.5) who
had prepared the postmortem
report on this aspect. P.W.5
categorically stated in his deposition that injury of the deceased victim
came from bullet fired from firearm. The Trial Court and the High
Court have committed no error on this point in accepting eyewitness
account supported by medical evidence. In his deposition, P.W.5 has
stated:“
Outer physical force may cause laceration of heart and lung.
Fracture of ribs may be caused by fall and physical force applied
by blunt weapon. Bullet causes puncture injury. Puncture injury
has length, breadth and width. In puncture injury the width is
greater than breadth and length. I cannot say what is the velocity
of a bullet. In fire arm injury char mark is formed when it is fired
from very short distance. The pellet causes multiple injuries and
in case of bullet single injury is caused. If pellet is fired from short
distance it passes through the body like bullet.”
9. As would be evident from this part of P.W.5’s deposition, there
was fracture of ribs of the deceased victim but the P.W.5 opined that it
could be caused from fall.
10. The appellant has sought to prove that the time of death was also
not proved as evidence from P.W.1 and P.W.3 came that they had gone
to the said chawk after meal. From this part of their deposition, the
appellant wants to establish that if that was the case, the stomach of
the deceased could have residue of undigested food. But this part of

the argument has been elaborately dealt with by the High Court and in
Para 13 of its Judgment the High Court observed and held:“
13. In this regard following opinion of Modi’s Medical
Jurisprudence and Toxicology, 23rd Edition at page 450 is
very relevant:‘
It must also be remembered that the process of
digestion in normal, healthy persons may
continue for a long time after death.’
It has come in evidence that at the time of death, the deceased
was aged about 28 years. Thus it is apparent that at that time
deceased was a young man. It has also come in evidence that
the postmortem
was held on 23.1.1993 at 11 a.m. Under the
aforesaid circumstance, because the deceased was a normal
young man of 28 years of age, digestion process might have
been continuing after the death of the deceased till the period
of postmortem
and in that view of the matter only because
digested food has been found in the stomach of deceased it
cannot be held that the prosecution had failed to prove the
time of occurrence that too in view of the cogent, clear and
acceptable evidence of P.W. 1 and 3.”
11. The High Court has negated the argument of lack of visibility
during night time on the basis that the crime was committed within a
city and there must have had been sufficient lighting. The place of
occurrence was also near two tea shops which would obviously have
had lighting.
12. In such circumstances, we do not find any reason to interfere
with the judgment of the High Court. As there is clear eyewitness
account of the incident and none of the two eyewitnesses could be
shaken during crossexamination
and they had stuck to the

recollection of the facts relating to the incident, the mere fact that the
weapon of assault or the bullet was not recovered cannot demolish the
prosecution case. The appeal is accordingly dismissed and the
judgment and order of Trial Court sustained by the High Court is
confirmed. We are apprised by the Learned Counsel for the appellant
that he is on bail. His bail bonds are cancelled and he is directed to
surrender within four weeks from today, failing which the Trial court
shall take necessary steps so that he undergoes the sentence. A copy
of this order be sent to the Trial Court.
....................................J.
[DEEPAK GUPTA]
....................................J.
[ANIRUDDHA BOSE]
NEW DELHI;
September 12, 2019.

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