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TMI Blog2004 (4) TMI 532X X X X Extracts X X X X X X X X Extracts X X X X ..... rt '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 alar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ged 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ator 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 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 categ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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