http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6

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.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6

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.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 6