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CASE NO.: Appeal (crl.)  769 of 2007

PETITIONER: Budh Singh

RESPONDENT: State of M.P.

DATE OF JUDGMENT: 18/05/2007

BENCH: S.B. Sinha & Markandey Katju

JUDGMENT: J U D G M E N T

CRIMINAL APPEAL NO.   769          OF 2007 (Arising out of SLP (Crl.) No.  6602 of 2006)  

S.B. SINHA, J.

1       Leave granted. 2.      Appellant was accused No. 1 before the trial Court.  He alongwith  three others namely Gulab Singh, Ashok Yadav and Kalyan Singh were tried  for commission of offences under Section 302/34 and 307/34 of Indian Penal  Code.  The occurrence took place at Village Jonhar at about 4’o clock in the  evening of 31.7.1989 near a well belonging to one Dangal Singh Yadav.    The first informant was the brother of the deceased Durgsingh.  

3.      In the First Information Report, it was alleged that the deceased went  to take bath.  First Informant was also going there to take his bath.  When he  was at a little distance from the said well, he found him taking bath.    Appellant came with a 12 bore double barrelled gun.  Kalyan Singh and  Ashok Yadav were also armed with guns.  Kalyan Singh, Ashok Yadav and  Gulab Singh  surrounded the well.  At the exhortation of Kalyan Singh,  appellant fired a shot from his 12 bore double barrel gun on the deceased.   Munnalal Yadav had also come therewith his cattle. Complainant Gyansingh  and Munnalal shouted whereupon Ashok and Gulab fired on them. They,  however, lay down on the ground.   Other villagers came to the spot  immediately thereafter.  The dead body of Durgsingh was brought to Baroni  Police Station at about 5.45 in the evening.  P.W. 8, Virendra Singh was the  head constable attached to the said Police Station.  The Station House  Officer was absent.   On the oral report made by the first informant  Gyansingh, he recorded the First Information Report.  P.W. 11, Pramal  Singh was in charge of Sonagir Chouki.  He had come to the police station  for some administrative works.  As the S.H.O. had gone out of the police  station and the head constable was in-charge thereof, the First Information  Report was given to him.  At his instance, P.W. 8 made an inquest of the  dead body.  It was sent for post-mortem.  The dead body was received at the  hospital by Dr. A.K. Sharma at about 7.55 p.m. on the same day.  Post  mortem examination, however, was carried out at 10.30 on the next day.   The said Dr. A.K. Sharma examined himself as P.W.16.

4.      In his post-mortem report, it was opined that the death of Durg Singh  occurred due to a gun shot, hemorrhage and rupture of both the lungs.   Duration of death was said to be within 36 hours.   A bullet which was  marked as Art C was found in the body of the deceased.   It was sealed and  handed over to the constable concerned.

5.      The bullet was found to have ruptured the lung and thereafter hit the  ribs, as a result whereof, ribs had broken down.  It had ruptured the other  lung also.         

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6.      The accused having been arrested, the guns, in question, at their  instance, were recovered.  The bullets as also the guns were sent to a  ballistic expert.  The bullet, in question, was found to have fired from the  gun belonging to the appellant.   Before the learned trial Judge, Gyansingh  examined himself as P.W. 1.   Munnalal also deposed as P.W. 2 before the  learned Trial Judge.  The accused were also seen running away from the spot  by Sughar Singh, P.W. 5.   

7.      The learned Trial Judge convicted the appellant but acquitted the  others. Against such judgment and order of acquittal, the State, however  preferred an appeal before the High Court only against the judgment of  acquittal acquitting Kalyan Singh.  No appeal was filed against judgment of  acquittal passed in favour of Babulal and Dashrath Singh.   

8.      The High Court by reason of the impugned judgment not only upheld  the judgment of conviction passed against the appellant by the learned Trial  Judge but also set aside the judgment of acquittal of the learned Sessions  Judge in favour of the said Kalyan Singh.  This Court, however, found the  approach of the High Court in reversing the judgment of acquittal passed  against Kalyan Singh not in accordance with law.  His Special Leave  Petition has been allowed by this Court by an Order dated 21.11.2006.   

9.      Mr. T.N. Singh, learned senior counsel appearing on behalf of the  appellant would submit: (i)     The First Information Report is an ante timed one.  From a perusal  thereof, it would appear that occurrence had taken place on 30th  July, 1989, but in the post mortem report, the time of death found  to have been occurred within 36 hours therefrom and, thus, the  occurrence must be held to have taken place on 30.7.1989 itself.    The empty cartridge which was recovered was not sealed at the  spot.  It was marked with the words "KF".  The same was not of  Indian origin but it bore the mark "RF" manufactured at Elekaina  Company which was a British Company. (ii)    Although, Appellant was not declared as an absconder, he was  arrested on 20.8.1989 and the gun was seized only on 30.8.1989. (iii)   P.W. 1 has made improvements in his deposition before the Court  as the details of the occurrences had not been disclosed in the First  Information Report. (iv)    In the post mortem report, no blackening or tattoing  having been  found, it was likely that the manner in which the occurrence is said  to have taken place, would be incorrect.  (v)     The learned Trial Judge had acquitted Kalyan Singh and two  others, the impugned judgment cannot be sustained as the appellant  is similarly situated.

10.     Ms. Vibha Datta Makhija, learned counsel appearing on behalf of the  State on the other hand would submit : (i)     the occurrence took place on 31st July and not on 30th July, as would  appear from the First Information Report itself.

(ii)    The duration of occurrence, having been found in the post mortem  report, to have occurred ’within 36 hours’, it cannot be said that the  occurrence could not have taken place on 31st July.   

(iii)   The Ballistic Expert Dr. J.P. Nigam, Assistant Director of Forensic  Science Laboratory in his report having categorically stated that the shot was  fired from the gun in question, the participation of the appellant in  commiting the crime has clearly been established.

       In its report, the ballistic expert opined:- "Ex. EC-1.   It is an empty Kartoosh of 12 Bore  already fired.  For filing pin impression it was  compared with TC’s RB(A-1) and TC’sLB (A-1).   Similarity was found between Ex. A-1 and  TCLB(A-1) photomicrography of one condition of

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its similarity was taken and equal points were  marked.  Ex. P-1 \026 This is a piece of iron whose  weight is 4.550 gm.   Its length is 0.5" and width is  0.3" on one edge and on other edge is 0.45"

It was opined:-

"Ex. A-1 is a gun of 12 bores of two barrel and Ex. A-2  is a gun of two barrels. Both these are in running  condition. After chemical examination of the rest  portions of barrel it has been confirmed that these were  fired earlier, but it is not possible to say the last firing  date of this on the basis of scientific certainty.  Ex. EC1  is an empty Kartoosh of 12 bores already fired.  For  firing pin impression it was compared with TCS (A-1)  by microscope similarity was found between EC1 and  TCLB (A-1).  Therefore Kartoosh of Ex. EC1 has been  fired from left barrel of Ex. A-1."

        (iv)    In the receipt marked as Ext. A-1, the empty cartridge was marked as  Articles Ext. EC-1 in a sealed and packed condition and thus there cannot be  any doubt whatsoever that the cartridge, in question, was the one which was  recovered from the place of occurrence.  In his evidence also, the said Dr.  J.P. Nigam stated:- "Exhibit EC-1:  This is an empty cartridge fired from  12 bore and for its firing pin impression, its comparison  by microscope TC A-1, the similarity of EC-1 and  TCLB (A-1) was found.   Therefore, Ex EC-1 cartridge  Ex A-1 has been fired from left barrel.",

which also show the involvement of the appellant.

(v)     Although there appeared to be some confusion with the gun bearing  mark KF or RF but the same was clarified by P.W. 11 in his evidence  stating that he identified the cartridge in question.   In regard to the wrong  marking, he had stated; "On spot there was no piece of Karatoosh but there was  a Khokha of Karatoosh there.   It is not written as R-F  and K-F on Article B Karatoosh but I understood it as  K-F and accordingly, I had written on Ex. P-5  panchnama as K.F. 1 has seen point 3 in sketch from  the place A,B."

11.     The prosecution case in our opinion stands proved from the evidence  of first informant ’Gyansingh’ and PW. 2 ’Munnalal’. It appears that a  confusion in regard to date of occurrence as contended by Mr. Singh arose  and only a Xeroxed copy of the F.I.R. was produced before us.   Ms.  Makhija, however, has produced before us another Xeroxed copy of the  first information report, from a perusal whereof it appears that the date of  occurrence has therein also written in Hindi to be 31st July. Even  otherwise, the original First Information Report categorically shows that  the dead body was brought in a tractor directly to the police station on  30.07.1989.  P.W. 8 and P.W. 11 also are witnesses to prove that the F.I.R.  was recorded on 30.07.1982.  Those witnesses were not cross-examined on  the question as to whether the occurrence had taken place on 31st July or  30th July.  We have noticed hereinbefore that the dead body was sent for  post mortem immediately to the hospital.   Dr. A.K. Sharma noted in his  post mortem report, the time when the dead body had been received at  mortuary.  P.W. 11 recorded the statements of Ram Prasad, Jagdish Singh,  Sughar Singh,  P.W. 3, P.W. 4, P.W. 5 respectively on the same day.  He  visited the spot on that day itself, but could not carry out the further  investigation due to darkness.  He visited the place of occurrence on the

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next day and drew the sketch map, found clots of blood and recovered  pieces of plastic and a 12 bore ’kartoosh’.  He seized blood stained water  in a bottle.

12.     As noticed hereinbefore, in the Court, he identified the cartridge in  question.   Identity of the blank cartridge recovered from the spot is not in  question.  The manner in which the occurrence had taken place is clearly  corroborated by the medical evidence, the correctness whereof again is not  in question.

13.     Duration of time between the actual death and the post mortem  examination has been stated to be within 36 hours.  Had the occurrence  taken place on 30th July, it would have been stated by Dr. Sharma to be  more than 36 hours.  

14.      It is now well settled that the lapse of time of taking place of death  cannot be accurately stated.   

15.     In Amrit Singh v State of Punjab [AIR 2007 SC 132], it was held:- "...Exact time as to when the occurrence took place is  not known and it would be hazardous to make any  guess in this behalf....."

16.     In Ramreddy Rajeshkhanna Reddy and Anr. v State of Andhra  Pradesh [AIR 2006 SC 1656], this Court opined:- "20. In this case, the time of actual offence having regard  to the different statements made by different witnesses  may assume some importance as one of the grounds  whereupon the High Court has based its judgment of  conviction is the time of death of the deceased on the basis  of the opinion rendered by Dr. P. Venkateshvarlu  (P.W.13). In Modi’s Medical Jurisprudence, 22nd edition,  as regard duration of rigor mortis, it is stated:                   Average                Minimum                       Maximum                   Hours  Minutes     Hours   Minutes         Hours   Minutes Duration          19       12                 3        0                      40        0 of rigor  mortis It was, therefore, extremely difficult to report the exact  time of death of the deceased, more so when no sufficient  reason was assigned in the post- mortem report."  

17.     In Ramjee Rai and Ors. v State of Bihar [2006 (8) SCALE 440], this  Court held:- "A contention was raised that autopsy surgeon opined  that the death must have taken place 10 days prior to  the post mortem examination and in that view of the  matter the prosecution case should be disbelieved. The  murder allegedly took place on a boat. The dead body  was thrown in the water. It remained under water for  more than five days. Rigor mortis was absent and the  body was fully decomposed. The soft tissues of some of  the parts of the body had been eaten away by fish.  Medical science has not achieved such perfection so as  to enable a medical practitioner to categorically state in  regard to the exact time of death. In a case of this  nature, it was difficult to pinpoint the exact time of  death. The autopsy surgeon told about the approximate  time lag between the date of post mortem examination  and the likely date of death. He did not explain the basis  for arriving at his opinion. This Court on a number of  occasions noticed that it may not be possible for a  doctor to pinpoint the exact time of death." 18.     In Baso Prasad and Ors.  v State of Bihar [2006 (12) SCALE 354],  this Court observed:-

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"We may deal with the question as regards presence of  rigour mortis. In ’Modi’s Textbook of Medical Jurisprudence and  Toxicology’,21st Edn., at page 171, it is stated: Rigor mortis generally occurs, while the body is cooling.  It is in no way connected with the nervous system, and it  develops even in paralyzed limbs, provided the paralyzed  muscle tissues have not suffered much in nutrition. It is  retarded by perfusion with normal saline. Owing to the setting in of rigor mortis all the muscles of  the body become stiff, hard, opaque and contracted, but  they do not alter the position of body or limb. A joint  rendered stiff and rigid after death, if flexed forcibly by  mechanical violence, will remain supple and flaccid, but  will not return to its original position after the force is  withdrawn; whereas a joint contracted during life in cases  of hysteria or catalepsy will return to the same condition  after the force is taken away.         ***              ***              ***                   *** The exact time of death, therefore, cannot be established  scientifically and precisely, only because of presence of  rigour mortis or in the absence of it."          19.     Blackenning of the wound can be found only when the shot is fired  from a short distance namely at about 3 to 4 feet and not beyond the same.                           Absence of any blackening of the wound has rightly been not found in the  post mortem examination.   

20.     The purported improvement made by P.W. 1 is not of much  significance. First Information Report, as noticed hereinbefore, was lodged  at the quickest possible time.  A First Information Report is not supposed  to be an encyclopedia of the entire event.  It cannot contain the minutest  details of the events.

21.     The essential material facts were disclosed in the First Information  Report.  Even presence of P.W. 2, Munnalal had also been stated.   Statements of the other witnesses namely P.W. 3, P.W. 5 and P.W. 6 had  also been recorded by the investigating officer on 31st July itself.  It is,  therefore, difficult to accept the contentions of the learned counsel.

22.     The First Information Report was recorded by the Head Constable.   Investigation was taken over from P.W. 11 by P.W. 12, R.S. Raghuvanshi  and thereafter only the accused were arrested.  Seizure of the gun  belonging to the appellant is proved not only by P.W. 12 but also by Murat  Singh P.W. 9. We may notice that even Kalyan Singh had surrendered in  the Police Station on 20.8.1989.  Indisputably the gun as also the empty  cartridge found at the spot was sent to the Forensic Science Laboratory.  Qualification of Shri J.P. Nigam as a ballistic expert has not been doubted.   Although, there appears to be some confusion with regard to the marking  of the parcel containing the empty cartridge, evidently the same had  correctly been marked by Shri Nigam.  He found it in a sealed condition.  Only because P.W. 8 in his evidence did not state that the recovered empty  cartridge was sealed at the spot, the same would not mean that it was  planted later on, particularly when recovery of the gun and the report of the  expert has not been disputed.

23.     The question as to whether the First Information Report is an ante  timed one or not must be considered having regard to the facts and  circumstances of the case as has been opined by this Court in Meharaj  Singh (L/Nk.) v State of U.P. [(1994) 5 SCC 188], whereupon Mr. Singh  placed strong reliance.   Having perused the first information report, we are  of the opinion that although the same was transcribed by P.W. 8 from the  oral statement made by P.W. 1, it contained all the material particulars.   The very fact that it was recorded almost immediately after taking place of

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the occurrence, the question of its being an ante timed one would not arise.          24.     In Chandu v State of Maharashtra [(2002) 9 SCC 408], whereupon  again reliance has been placed by Mr. Singh, the High Court therein found  the story of recovery of weapon of the offences as not believable.  Even  there was a serious discrepancy in regard to the alleged weapon of offence  used, as according to the eye witnesses, a spear-blow had been given on  the chest after the deceased struck against a cycle, whereas the medical  evidence showed that the weapon must have entered the body from  ’upward to downward laterally to right side’, only on that basis the  prosecution story was not believed.  Such is not the case here.

25.     Reliance has also been placed on Gorle S. Naidu v State of A.P. and  Others [A.I.R. 2004 SC 1169], wherein not only the eye witnesses who  were said to have received injuries did not get themselves medically  examined, the accused persons were also not specifically named during  investigation. The said decisions, therefore, are not applicable to the facts  of the present case.

26.     A defective investigation by itself cannot be a ground for acquittal.    Witnesses examined on behalf of the prosecution have been believed both  by the learned Trial Judge as also by the High Court. So far as the  appellant is concerned, we do not find any reason to differ therefrom.            27.     For the reasons aforementioned, there is no merit in this appeal  which is dismissed accordingly.