Page 1

              REPORTABLE IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 43 OF 2010

UMESH SINGH  … APPELLANT  

Vs.

STATE OF BIHAR … RESPONDENT

J U D G M E N T

V. Gopala Gowda, J.

This appeal is filed by the appellant aggrieved by  

the  common  judgment  dated  22nd May,  2003  passed  in  

Crl.A.Nos. 241, 247, 271 and 318 of 1998 in affirming  

the conviction and sentence of the appellant for the  

offence punishable under Section 302 read with Section  

34  I.P.C.  and  Section  27  of  the  Arms  Act  urging  

various  facts  and  legal  contentions.  The  appellant

Page 2

Crl. A. No. 43 of 2010

herein  was  the  appellant  in  Crl.A.No.318  of  1998  

before the High Court. The impugned judgment passed in  

the said case is under challenge in this appeal.    

2. The  brief  facts  in  relation  to  the  prosecution  

case  are  stated  hereunder  to  appreciate  the  rival  

legal  contentions  that  are  urged  on  behalf  of  the  

parties with a view to find out as to whether this  

Court  is  required  to  interfere  with  the  concurrent  

finding of fact recorded in affirming the conviction  

and sentence imposed against the appellant.  

3. The  deceased  Shailendra  Kumar  was  murdered  on  

16.07.1996 at about 3.30 p.m. by the appellant Umesh  

Singh  and  other  persons,  namely,  Awadhesh  Singh,  

Sudhir Singh, Jaddu Singh, Nawal Singh, Binda Singh @  

Bindeshwari Singh by shooting him with a revolver and  

rifle with a criminal intention for unlawful purpose  

in furtherance of common intention along with other  

accused and to have in their possession of fire arms  

with an intention to use it for an unlawful purpose to  

2

Page 3

Crl. A. No. 43 of 2010

commit murder of Shailendra Kumar along with accused  

nos.5 & 6 and another accused Moti Singh who is dead.  

They were charged under Section 302 read with Section  

34, IPC.  The case of the prosecution is that the  

deceased along with his cousin brother Arvind 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  

3

Page 4

Crl. A. No. 43 of 2010

the deceased in the Payeen. It is also the case of the  

prosecution that during the course of the occurrence  

of the incident the informant PW2 Arvind Kumar was  

kept over-powered by the deceased accused Moti Singh  

and Jaddu Singh and after accomplishing the target,  

they  left.  Further,  the  witnesses  whose  names  were  

found  in  the  fardbeyan  claimed  to  have  seen  the  

occurrence of the incident. The fardbeyan was recorded  

by ASI RS Singh at about 7.00 p.m. on the same date at  

Tungi  High  School  hostel,  Latawar  Payeen  and  the  

inquest report of the dead body was also prepared at  

the place of occurrence itself at 7.10 p.m. Seizure  

list  of  certain  incriminating  items  including  empty  

fired cartridges which were recovered from the spot  

was  also  prepared.   Formal  FIR  was  recorded  and  

investigation  was  taken  up  by  the  police.   On  

concluding the investigation, the police submitted the  

charge  sheet  before  the  learned  Chief  Judicial  

Magistrate on the basis of which cognizance was taken  

4

Page 5

Crl. A. No. 43 of 2010

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  

5

Page 6

Crl. A. No. 43 of 2010

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  

6

Page 7

Crl. A. No. 43 of 2010

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  

7

Page 8

Crl. A. No. 43 of 2010

which is not admissible in law and also hit by Section  

162, Cr.P.C.  In support of this contention he has  

placed reliance upon the judgment of this Court in  

State  of  A.P.  v.  Punati  Ramulu.1 The  relevant  paragraphs read as under:

“3. In our opinion, the reasons  recorded by the High Court for  recording  acquittal  of  the  respondents  is  based  on  proper  appreciation of evidence. The findings are not only supported  by proper appreciation of the evidence but are also reasonable  and sound. Thanks to the tainted investigation, the murder of  Krishna Rao goes unpunished. But we must hasten to add that  since the defence has been able to successfully challenge the  bona  fides  of  the  police  investigation,  it  has  detracted  materially from the reliability of the other evidence led by the  prosecution also.

5. Once we find that the investigating officer has deliberately  failed to record the first information report on receipt of the  information of a cognizable offence of the nature,  as in this  case,  and  had  prepared  the  first  information  report  after  reaching  the  spot  after  due  deliberations,  consultations  and  discussion,  the  conclusion  becomes  inescapable  that  the  investigation is tainted and it would, therefore, be unsafe to  rely upon such a tainted investigation, as one would not know  where  the  police  officer  would  have  stopped  to  fabricate  evidence and create false clues. Though we agree that mere  relationship of the witnesses PW 3 and PW 4, the children of  the deceased  or  of PW 1 and PW 2 who are also related to the

1 (1994) Suppl.1 SCC 590

8

Page 9

Crl. A. No. 43 of 2010

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  Assam2.  The  relevant  paragraph  of  the  abovementioned case reads as under:

2 (2009) 14 SCC 541

9

Page 10

Crl. A. No. 43 of 2010

“11. It is the duty of the party to lead the best evidence in its  possession which could throw light on the issue in controversy  and in case such material evidence is withheld, the court may  draw adverse inference under Section 114 Illustration (g) of  the Evidence Act, 1872 notwithstanding that the onus of proof  did not lie on such party and it was not called upon to produce  the said evidence (vide  Gopal Krishnaji Ketkar v.  Mohd. Haji   Latif).”

6.  The  learned  senior  counsel  for  the  appellant  

further contended that not recording the information  

furnished by PW4 to the police as FIR but treating PW2  

information as FIR in the case though it is hit by  

Section 162, Cr.P.C. creates doubt in the prosecution  

case and therefore benefit of doubt must be given to  

the accused by the trial court and the High Court.  In  

support of the same, the learned senior counsel has  

placed  reliance  upon  the  judgment  of  this  Court  

reported  in  T.T.  Antony  v.  State  of  Kerala3.  The  relevant paragraphs are extracted hereunder:  

“18. An information given under sub-section (1) of Section 154  CrPC  is  commonly  known  as  first  information  report  (FIR)  though this term is not used in the Code. It is a very important  document. And as its nickname suggests it is the earliest and  the first  information of  a cognizable offence recorded by an  

3 (2001) 6 SCC 181

10

Page 11

Crl. A. No. 43 of 2010

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.

11

Page 12

Crl. A. No. 43 of 2010

19. The scheme of CrPC is that an officer in charge of a police  station has to commence investigation as provided in Section  156 or 157 CrPC on the basis of entry of the first information  report, on coming to know of the commission of a cognizable  offence. On completion of investigation and on the basis of the  evidence collected, he has to form an opinion under Section  169 or 170 CrPC, as the case may be, and forward his report to  the Magistrate concerned under Section 173(2) CrPC. However,  even after filing such a report, if he comes into possession of  further information or material,  he need not register a fresh  FIR; he is empowered to make further investigation, normally  with  the  leave  of  the  court,  and  where  during  further  investigation he collects further evidence, oral or documentary,  he is obliged to forward the same with one or more further  reports; this is the import of sub-section (8) of Section 173  CrPC.

20. From the above discussion it follows that under the scheme  of the provisions of Sections 154, 155, 156, 157, 162, 169, 170  and 173 CrPC only the earliest or the first information in regard  to  the  commission  of  a  cognizable  offence  satisfies  the  requirements  of  Section  154  CrPC.  Thus  there  can  be  no  second  FIR  and  consequently  there  can  be  no  fresh  investigation  on  receipt  of  every  subsequent  information  in  respect of the same cognizable offence or the same occurrence  or incident giving rise to one or more cognizable offences. On  receipt of information about a cognizable offence or an incident  giving rise to a cognizable offence or offences and on entering  the FIR in the station house diary, the officer in charge of a  police  station  has  to  investigate  not  merely  the  cognizable  offence reported in the FIR but also other connected offences  found  to  have  been  committed  in  the  course  of  the  same  transaction  or  the  same  occurrence  and  file  one  or  more  reports as provided in Section 173 CrPC.”

Also, the Patna High Court,  in the case of  Deo Pujan Thakur v.  

State of Bihar4, opined as hereunder:  

4 (2005) Crl.L.J. Patna 1263

12

Page 13

Crl. A. No. 43 of 2010

“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  

13

Page 14

Crl. A. No. 43 of 2010

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  

14

Page 15

Crl. A. No. 43 of 2010

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  

15

Page 16

Crl. A. No. 43 of 2010

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  

16

Page 17

Crl. A. No. 43 of 2010

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  

17

Page 18

Crl. A. No. 43 of 2010

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  

18

Page 19

Crl. A. No. 43 of 2010

from the one as per the medical evidence, the case of  

the prosecution becomes doubtful and the benefit of  

doubt must be given to the appellant. He has placed  

reliance upon the following decisions of this Court,  

namely,  Thangavelu v. State of TN5, Moti v. State of  U.P.6, Kunju Mohd. v. State of Kerala7, Virendra v.  State of U.P.8 and Baso Prasad v. State of Bihar.9

9. Therefore, the learned senior counsel submits that  

the concurrent finding of fact on the charge recorded  

by the High Court against this appellant is erroneous  

and vitiated in law which is liable to be set aside  

and he may be acquitted of the charges leveled against  

him and he may be set at liberty by allowing this  

appeal.  

10. On the other hand, Mr.Chandan Kumar, the learned  

counsel appearing on behalf of the State sought to  

justify  the  finding  and  reasons  recorded  in  the  

5 (2002) 6 SCC 498 6 (2003) 9 SCC 444 7 (2004) 9 SCC 193 8 (2008) 16 SCC 582 9 (2006) 13 SCC 65

19

Page 20

Crl. A. No. 43 of 2010

impugned  judgment,  inter  alia,  contending  that  the  

High Court in exercise of its appellate jurisdiction  

has  examined  the  correctness  of  the  findings  and  

reasons recorded by the learned Sessions Judge on the  

charges  framed  against  the  appellant  and  on  proper  

appraisal of the same, it has affirmed the conviction  

and sentence imposed against the appellant which is  

based on proper re-appreciation of evidence on record.  

The same is supported with valid and cogent reasons.  

Learned counsel further sought to justify registration  

of FIR on the basis of the information furnished by  

PW2 which is in conformity with the decision of this  

Court  in  Binay  Kumar  v.  State  of  Bihar10 relevant  paragraph of which reads as under:

“9. But we do not find any error on the part of the police in not  treating Ext.  10/3 as the first information statement for  the  purpose  of  preparing  the  FIR in  this  case.  It  is  evidently  a  cryptic  information and is hardly sufficient for discerning the  commission of any cognizable offence therefrom. Under Section  154 of the Code the information must unmistakably relate to  the commission of a cognizable offence and it shall be reduced  to writing (if given orally) and shall be signed by its maker. The  

10 (1997) 1 SCC 283

20

Page 21

Crl. A. No. 43 of 2010

next requirement is that the substance thereof shall be entered  in a book kept in the police station in such form as the State  Government has prescribed. First information report (FIR) has  to be prepared and it shall be forwarded to the magistrate who  is empowered to take cognizance of such offence upon such  report. The officer in charge of a police station is not obliged to  prepare  FIR  on  any  nebulous  information  received  from  somebody  who  does  not  disclose  any  authentic  knowledge  about commission of the cognizable offence. It is open to the  officer-in-charge to collect more information containing details  about  the  occurrence,  if  available,  so  that  he  can  consider  whether a cognizable offence has been committed warranting  investigation.”

11. Further, the correctness of the same is sought to  

be  justified  by  placing  reliance  upon  the  I.O.’s  

evidence.  The  counsel  for  the  state  has  placed  

reliance upon the decision of this Court in  Dinesh  Kumar v. State of Rajasthan11. The relevant paragraphs  are extracted hereunder:

“11. It  is  to be noted that PWs 7 and 13 were the injured  witnesses  and  PW 10  was  another  eyewitness  and  was  the  informant.  Law is  fairly  well  settled that  even if  acquittal  is  recorded in respect of the co-accused on the ground that there  were exaggerations and embellishments, yet conviction can be  recorded if the evidence is found cogent, credible and truthful  in respect of another accused. The mere fact that the witnesses  were related to the deceased cannot be a ground to discard  their evidence.

11 (2008) 8 SCC 270

21

Page 22

Crl. A. No. 43 of 2010

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,  

22

Page 23

Crl. A. No. 43 of 2010

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  

23

Page 24

Crl. A. No. 43 of 2010

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.  

24

Page 25

Crl. A. No. 43 of 2010

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  

25

Page 26

Crl. A. No. 43 of 2010

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  Pradesh12.  The  relevant  paragraphs are extracted hereunder:

12 (2010) 10 SCC 259

26

Page 27

Crl. A. No. 43 of 2010

“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  

27

Page 28

Crl. A. No. 43 of 2010

be creditworthy; consistency with the undisputed facts,  the ‘credit’  of the witnesses; their performance in the  witness box; their power of observation, etc. Then the  probative value of such evidence becomes eligible to be  put into the scales for a cumulative evaluation.”

36. In  Solanki  Chimanbhai  Ukabhai v.  State  of  Gujarat this  Court observed: (SCC p. 180, para 13)

“13.  Ordinarily,  the value of medical  evidence is only  corroborative.  It  proves  that  the  injuries  could  have  been caused in the manner alleged and nothing more.  The use which the defence can make of  the medical  evidence is to prove that the injuries could not possibly  have been caused in the manner alleged and thereby  discredit the eyewitnesses. Unless, however the medical   evidence in its turn goes so far that it completely rules   out all possibilities whatsoever of injuries taking place   in the manner alleged by eyewitnesses, the testimony   of  the  eyewitnesses  cannot  be  thrown  out  on  the   ground  of  alleged  inconsistency  between  it  and  the   medical evidence.”

39. Thus,  the  position  of  law  in  cases  where  there  is  a  contradiction  between  medical  evidence  and ocular  evidence  can  be  crystallised  to  the  effect  that  though  the  ocular  testimony of a witness has greater evidentiary value vis-à-vis  medical  evidence,  when  medical  evidence  makes  the  ocular  testimony improbable,  that becomes a relevant  factor in the  process  of  the  evaluation  of  evidence.  However,  where  the  medical evidence goes so far that it completely rules out all  possibility  of  the  ocular  evidence  being  true,  the  ocular  evidence may be disbelieved.”

16.  The learned State counsel has rightly urged that  

if the medical and ocular evidence is contrary then  

the ocular evidence must prevail. This aspect of the  

28

Page 29

Crl. A. No. 43 of 2010

matter  has  been  elaborately  discussed  and  the  

principle is laid down by this Court in the aforesaid  

decision.  The  findings  and  decision  recorded  and  

rendered  by  the  learned  Additional  Sessions  Judge  

after thorough discussion and on proper appreciation  

of evidence on record held that the doctor has opined  

that  rigor  mortis  starts  within  1  to  3  hours  and  

vanishes  after  36  hours.   The  said  opinion  of  the  

medical  officer  PW8  regarding  complete  vanishing  of  

rigor mortis from the  dead body after 36 hours is  

medically  not  correct  and  this  may  be  lack  of  his  

knowledge on the subject and he was liberal to the  

cross-examination by the defence lawyer. Further the  

learned Additional Sessions Judge has rightly referred  

to Medical Jurisprudence Digest written by B.L. Bansal  

Advocate, (1996 Edition at page 422), which clearly  

mentions that the rigor mortis persists from 12 to 24  

hours and then passes off but it means that the faster  

the  rigor  mortis  appears,  the  shorter  time  it  

29

Page 30

Crl. A. No. 43 of 2010

persists.  Further,  rightly  the  learned  Additional  

Sessions Judge has referred to the case decided by  

this Court in Boolin Hulder v. State13 wherein it has  been held that at the same climate of India, rigor  

mortis may commence in an hour to two and begin to  

disappear  within  18  to  24  hours.  Therefore,  the  

learned  Additional  Sessions  Judge  has  held  that  

broadly speaking the faster the rigor mortis appears,  

the  shorter  the  time  it  persists  and  further  has  

rightly  made  observation  that  rigor  mortis  will  be  

present  in  some  parts  of  legs  of  the  dead  body.  

According  to  the  medical  officer  PW8  there  is  no  

question of the time of death of the deceased.  It  

must have preceded more than 24 hours which is the  

maximum limit for disappearance of rigor mortis. The  

said view of the medical officer PW8 was found fault  

with by the learned Additional Sessions Judge and held  

that  he  has  not  correctly  deposed  in  his  cross-

13 1996 Crl.L.J. 513

30

Page 31

Crl. A. No. 43 of 2010

examination regarding the time lapse of a dead person.  

He has extended the time for rigor mortis to be 30 to  

36 hours and further rightly held that PW8 the medical  

officer, has deposed in his evidence contrary to the  

rule of medical jurisprudence. Therefore, the learned  

Additional  Session  Judge  has  rightly  held  in  the  

impugned judgment the same cannot be the basis for the  

defence  to  acquit  the  accused.  The  claim  by  the  

appellant that the deceased has been killed in the  

early morning of 16.07.1996 and the allegation that  

the accused has been falsely implicated in the case  

has been rightly rejected by the learned Additional  

Sessions Judge and the same has been concurred with by  

the  High  Court  by  assigning  the  valid  and  cogent  

reasons in the impugned judgment. Rightly, the learned  

counsel appearing on behalf of the State has placed  

reliance upon the judgment of this Court referred to  

supra  that  between  medical  and  ocular  evidence  the  

ocular evidence must be preferred to hold the charge  

31

Page 32

Crl. A. No. 43 of 2010

proved. This is the correct legal position as held by  

both the learned Additional Sessions Judge as well as  

the  High  Court  after  placing  reliance  upon  the  

statement  of  evidence  of  PW2,  PW3,  PW5  and  PW7.  

Therefore, we do not find any erroneous reasoning on  

this aspect of the matter. There is no substance in  

submissions of the learned senior counsel on the above  

aspect of the matter with reference to judgments of  

this  Court  referred  to  supra  which  decisions  have  

absolutely no application to the facts situation of  

the case on hand.   

17. In view of the concurrent findings by the High  

Court as well as the learned Additional Sessions Judge  

and  an  order  of  conviction  and  sentence  imposed  

against the appellant herein is on the basis of legal  

evidence on record and on proper appreciation of the  

same. Therefore, the same is not erroneous in law as  

the  finding  is  supported  with  valid  and  cogent  

reasons.  For  the  foregoing  reasons  the  impugned  

32

Page 33

Crl. A. No. 43 of 2010

judgment and order cannot be interfered with by this  

Court.  Hence,  the  appeal  is  devoid  of  merit  and  

accordingly it is dismissed.

……………………………………..J. [ CHANDRAMAULI KR. PRASAD]

………………………………………J.                                                [V. GOPALA GOWDA]

New Delhi, March  22, 2013

33