Ram Bali Vs. State of Uttar Pradesh  Insc 278 (16 April 2004)
Raju & Arijit Pasayat Arijit Pasayat,J
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.
facts which led to trial are as follows:
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.
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.
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.
as noted above, co-accused Rajendra was acquitted by the High Court.
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
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.
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.
PWs 1 and 2 cannot be truthful witnesses.
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 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.
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.
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.
outset, it is to be noted that before the High Court only two points were said
to have been urged.
are as follows:
witness has witnessed the incident and the accused have been falsely implicated
because of enmity.
The accused Ram Bali Singh went to jail on 20.7.1982 for identification and he
was not present at the time of incident.
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).
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 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.
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.
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.
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).
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.
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
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.
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.
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.
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.
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.
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.