Full Judgment Text
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CASE NO.:
Appeal (crl.) 204 of 2003
PETITIONER:
Ram Bali
RESPONDENT:
State of Uttar Pradesh
DATE OF JUDGMENT: 16/04/2004
BENCH:
DORAISWAMY RAJU & ARIJIT PASAYAT
JUDGMENT:
J U D G M E N T
ARIJIT PASAYAT,J
A Division Bench of the Allahabad High Court by the
impugned judgment upheld the conviction recorded by
learned Special Judge, Hamirpur holding appellant guilty
of offence punishable under Section 302 of the Indian
Penal Code 1860 (in short ’IPC). Accused-appellant was
sentenced to undergo imprisonment for life. However,
co-accused Rajendra Singh was acquitted.
Background facts which led to trial are as follows:
Complainant-Ram Singh (PW-1) at the time of
occurrence was living at village Swasa. On 20.7.82 at
about 6.00 p.m. when he was returning to his village
Pyare Singh (PW-2), a co-villager was also with him. On
the way his brother Prem Singh (hereinafter referred to
as the ’deceased’) who was living at village Chhani met
him. They came to the bus stop and sat at the Chabutra
in front of the Dak Bungalow and waited for the bus. At
that time a bus came from Hamirpur. Appellant-Rambali
Singh (A-1) and Rajendra Singh (A-2) residents of
village Chhani Bujurg got down from that bus.
Accused Rambali had a double barrel gun in his hand
and a single barrel gun was in the hands of the
acquitted accused Rajendra Singh. After that they went
to a nearby betel shop. From there they came and stood
in front of them and said to his brother, the deceased
"Dishonest: should we kill you". At that time Rambali
fired from his double barrel gun and killed the deceased
who died at the spot. The complainant and others raised
alarm and the accused ran away towards the village
hospital. There was enmity between the family members
of the complainant and accused Rambali Singh due to
litigations and for that reason the accused persons had
assassinated the deceased-Prem Singh. Many villagers
were present there at the time of occurrence. The
occurrence report was drafted by Ram Kishan Gupta under
the instruction of complainant, registered as FIR and
is Exhibit Ka-1. After FIR was lodged, investigation was
undertaken.
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On completion of investigation charge-sheet was
placed and matter was taken up for trial after framing
charges. Six witnesses were examined to further the
prosecution case. Out of six witnesses examined, PWs 1
and 2 were stated to be the eye-witnesses to the
occurrence. The accused who pleaded innocence did not
examine any witness. They took the plea that the
complainant was not present at the site of the
occurrence as alleged to have happened. One Ram Kishan
Gupta had called him from his village Swasa on
motorcycle. The Trial Court accepted the version of PWs
1 and 2 as a correct reflection of what had happened and
placing reliance on their evidence directed conviction.
But, as noted above, co-accused Rajendra was acquitted
by the High Court.
In support of the appeal, learned counsel for the
accused-appellant submitted that the High Court has not
elaborately analysed the evidence and has cryptically
disposed of the appeal. Medical evidence was clearly at
variance with the ocular evidence and, therefore, both
the Trial Court and the High Court had fallen into grave
error by placing reliance on the evidence of PWs 1 and
2. Though the accused allegedly used a gun, it was not
sent for forensic testing. Evidence on record
establishes that the village was a dacoit infested, for
which police patrolling just before the alleged incident
took place. A Constable (PW-5) had gone to the village,
but nobody reported anything to him. PW-2 had stated
that the deceased had taken lunch at about 2.00 p.m.
When the doctor conducted post-mortem he found that the
stomach was empty. With reference to the textbook
"Medical Jurisprudence and Toxicology" by HWV Cox, it
was pointed out that at least six hours are needed for
the food to get completely digested. Medical evidence,
therefore, probabilises the defence version that some
incident took place around 9.00 p.m. Though the distance
of the alleged place of occurrence from the police
station is about 8 Kms., FIR was lodged at the Binwar
police station around 9.30 p.m. It has been accepted
that it would have hardly taken half an hour by bus or
motorcycle to reach the police station. The doctor’s
view noted in the post-mortem regarding rigor mortis
also improbabilises the time of occurrence as alleged.
Therefore, PWs 1 and 2 cannot be truthful witnesses.
This is a case where the High Court’s judgment is not
maintainable because there was no proper appraisal of
the evidence in the background of submissions made by
the accused-appellant. As there is perversity in
appreciation and want of care and caution required for
examining truthfulness of related witnesses’ version,
both the Trial Court’s and the High Court’s judgment
become vulnerable. Though the presence of several
others has been accepted, no reason has been given for
their non-examination. Finally, it is submitted that the
judgment was delivered long after the hearing was closed
and, therefore, the arguments made before the High Court
have not been properly considered. Reference was made to
a decision in Anil Rai v. State of Bihar (2001 (7) SCC
318) to contend that the judgment should be set aside
and the matter remitted to the High Court for fresh
consideration. The appellant had taken specific plea
that on the concerned date he had gone to jail for the
purpose of identification and was not present. Three
witnesses were examined to substantiate the plea that
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the accused-appellant was not present at the time of
incident. It was submitted that the plea of alibi set up
by the accused-appellant has been erroneously brushed
aside without any reasonable basis.
In response, learned counsel for the State
supported the judgments of the Courts below and urged
that the evidence have been critically examined in the
proper perspective and there is no infirmity to warrant
any interference to the concurrent findings recorded by
the Courts below so far as the guilt of the accused is
concerned.
Learned counsel for the respondent submitted that
the discrepancy between the ocular version and the
medical evidence was not even pleaded before the High
Court. The plea relating to belated delivery of
judgment cannot according to the respondent be pressed
into service.
At the outset, it is to be noted that before the
High Court only two points were said to have been urged.
They are as follows:
(1) No witness has witnessed the incident and the
accused have been falsely implicated because of
enmity.
(2) The accused Ram Bali Singh went to jail on
20.7.1982 for identification and he was not
present at the time of incident.
We notice that the High Court specifically records
that only two points were urged before it. It has to be
noted that the statement of as to what transpired at the
hearing, the record in the judgment of the Court are
conclusive of the facts so stated and no one can
contradict such statement on affidavit or by other
evidence. If a party thinks that the happenings in Court
have been erroneously recorded in a judgment, it is
incumbent upon the party, while the matter is still
fresh in the minds of the Judges who have made record to
make necessary rectification. That is only way to have
the record corrected. It is not open to the appellant
to contend before this Court to the contrary. (See State
of Maharashtra v. Ramdas Shrinivas Nayak and Anr. (1982
(2) SCC 463), Bhavnagar University v. Palitana Sugar
Mill (P) Ltd. and Ors. (2003 (2) SCC 111), and Roop
Kumar v. Mohan Thedani (2003 (6) SCC 595).
Even otherwise, the plea that the medical evidence
is contrary to the ocular evidence has also no
substance. It is merely based on the purported opinion
expressed by an author. Hypothetical answers given to
hypothetical questions, and mere hypothetical and
abstract opinions by textbook writers, on assumed facts,
cannot dilute evidentiary value of ocular evidence if it
is credible and cogent. The time taken normally for
digesting of food would also depend upon the quality and
quantity of food as well, besides others. It was
required to be factually proved as to the quantum of
food that was taken, atmospheric conditions and such
other relevant factors to throw doubt about the
correctness of time of occurrence as stated by the
witnesses. Only when the ocular evidence is wholly
inconsistent with the medical evidence the Court has to
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consider the effect thereof. This Court in Pattipati
Venkaiah v. State of Andhra Pradesh (AIR 1985 SC 1715)
observed that medical science is not yet so perfect as
to determine the exact time of death nor can the same be
determined in a computerised or mathematical fashion so
as to be accurate to the last second. The state of the
contents of the stomach found at the time of medical
examination is not a safe guide for determining the time
of occurrence because that would be a matter of
speculation, in the absence of reliable evidence on the
question as to when exactly the deceased had his last
meal and what that meal consisted of. In Nihal Singh
and Ors. v. The State of Punjab (AIR 1965 SC 26), it was
indicated that the time required for digestion may
depend upon the nature of the food. The time also varies
according to the digestive capacity. The process of
digestion is not uniform and varies from individual to
individual and the health of a person at a particular
time and so many other varying factors.
Factors were also noted by HWV Cox in his book
referred to by learned counsel for the appellant. (See
Seventh Edition, at pages 300 to 302). An author’s view
which is opinion based on certain basic assumptions only
cannot be a substitute for evidence let in to prove a
fact - which invariably depends upon varied facts, and
according to the peculiar nature of a particular case on
hand. The only inevitable conclusion is that the plea is
without any substance, apart from the fact that the said
plea pertaining to mere appreciation of facts was not
raised before the High Court.
The investigation was also stated to be defective
since the gun was not sent for forensic test. In the
case of a defective investigation the Court has to be
circumspect in evaluating the evidence. But it would not
be right in acquitting an accused person solely on
account of the defect; to do so would tantamount to
playing into the hands of the investigating officer if
the investigation is designedly defective. (See Karnel
Singh v. State of M.P. (1995 (5) SCC 518).
In Paras Yadav and Ors. v. State of Bihar (1999 (2)
SCC 126) it was held that if the lapse or omission is
committed by the investigating agency or because of
negligence there had been defective investigation the
prosecution evidence is required to be examined de hors
such omissions carefully to find out whether the said
evidence is reliable or not and to what extent, such
lapse affected the object of finding out the truth. The
contaminated conduct of officials alone should not stand
on the way of evaluating the evidence by the courts in
finding out the truth, if the materials on record are
otherwise credible and truthful; otherwise the designed
mischief at the instance of biased or interested
investigator would be perpetuated and justice would be
denied to the complainant party, and in the process to
the community at large.
As was observed in Ram Bihari Yadav v. State of
Bihar and Ors. (1998 (4) SCC 517) if primacy is given to
such designed or negligent investigation, to the
omission or lapses by perfunctory investigation or
omissions, the faith and confidence of the people would
be shaken not only in the Law enforcing agency but also
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in the administration of justice. The view was again re-
iterated in Amar Singh v. Balwinder Singh and Ors. (2003
(2) SCC 518). As noted in Amar Singh’s case (supra) it
would have been certainly better if the firearms were
sent to the forensic test laboratory for comparison. But
the report of the ballistic expert would merely be in
the nature of an expert opinion without any
conclusiveness attached to it. When the direct testimony
of the eye-witnesses corroborated by the medical
evidence fully establishes the prosecution version,
failure or omission or negligence on the part of the IO
cannot affect credibility of the prosecution version.
It has been explained by the prosecution as to why
there was some delay in lodging the FIR. It has been
categorically stated that there was no bus available
and, therefore, it could be only done when the bus was
available. The question was not raised before the High
Court and apart from that, explanation offered appears
to be plausible, in the absence of any material to the
contrary.
Another plea which was emphasised related to non-
examination of alleged eye-witnesses. This plea was also
not pressed before the High Court. In any event, the
investigating officer and the witnesses have been
examined to explain the reason as to why the others were
not examined and nothing has been brought on record to
discredit those claims. The Trial Court has also
analysed this aspect and found no substance in the plea
of the accused.
The plea relating to alleged absence was examined
by the Trial Court and the High Court. It was noticed
that no material was produced to show that at the point
of time, when the occurrence took place, accused-
appellant was present in the jail for the purpose of
identification. We find no infirmity in the conclusions
of the Courts below in rejecting the plea of alibi.
We also find that the plea of delayed delivery of
judgment and the same rendering it vulnerable is without
any substance. In Anil Rai’s case (supra) this Court has
only stressed upon the desirability of early delivery of
judgments. In fact, the judgment impugned before this
Court in the said case was not set-aside on the ground
of delayed delivery of judgment and was dealt on merits.
In paras 10 and 45 of the judgment this Court had
indicated options to a party in case judgment is not
delivered for considerably long time. We are unable to
appreciate that any detriment as such was caused to the
appellant on that account alone, on the peculiar facts
of the case, as well.
There is no scope for reappraisal of evidence and
interference with the concurrent findings of fact. This
Court is not ordinarily to go into the credibility of
the findings and interference is permissible only when
exceptional and special circumstances exist which
resulted in injustice to the accused. This is not a
case of that nature and the evidence seems to be not
only creditworthy but the conclusions arrived at also
are well merited and sufficiently supported by
overwhelming material on record. We, therefore, find no
merit in this appeal, which is dismissed.
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