Holding

The Supreme Court held that the High Court erred in setting aside the trial court’s acquittal; the acquittal was justified and not perverse.

Summary

The appellants, Budh Singh and five others, were charged with murdering Ram Gopal and his wife Chatarvati and attempting to murder their son Rajveer Singh over a land dispute. The prosecution’s case relied on an FIR lodged at 00:25 on 13 April 1992, which reached the court on 18 April, and on medical and eyewitness evidence that was later found to be inconsistent, delayed, or inadequately recorded. The trial court acquitted the accused, finding the FIR possibly ante‑dated, the injuries on the victim not conclusively gun‑shot wounds, and the investigation riddled with procedural lapses. The High Court set aside the acquittal, but the Supreme Court held that the trial court’s view was not perverse and that the appellate court could not overturn an acquittal absent clear error. Consequently, the Supreme Court allowed the appeal, restored the acquittal, and dismissed the High Court’s conviction.

Issues considered

The FIR was ante‑dated or ante‑timed and whether the delay violated Section 157 Cr.P.C.
Whether the prosecution proved beyond reasonable doubt that the injuries were caused by gunshot and that the accused fired the weapons.
Whether the medical and ballistic evidence supported the prosecution’s version of the incident.
Whether procedural delays in investigation, post‑mortem, and witness examination vitiated the prosecution case.
Whether the trial court’s acquittal was perverse or contrary to law, permitting appellate interference.

Legislation cited

Arms Act, 1959s. 27
Code of Criminal Procedure, 1973s. 157, s. 161, s. 172, s. 174, s. 44
Indian Penal Code, 1860s. 148, s. 149, s. 302, s. 307
Police Act, 1861s. 44

Subjects

murderattempt to murderacquittalappellate reviewFIR ante‑datingmedical evidenceburden of proofpresumption of innocenceprocedural delayevidence evaluation

Judgment

BUDH SINGH AND ORS. A
v.
STATE OF U.P.

MAY 12, 2006

(S.B. SINHA AND P.P. NAOLEKAR, JJ.] B

Penal Code, 1860/Arms Act, 1959-Sections 148, 302 and 30711491
Section 27-Murder of two and attempt to murder one-Prosecutionfor-
Lacuna in investigation-Prosecution case not supported by medical
evidence-Non-examination of some of the eye-witnesses-Two of the
witnesses were related witnesses-Delay in post mortem examination and in
c
medical examination of the injured eye-witness-Acquittal by Trial Court-
Conviction by High Court-On appeal, held: Acquittal justified in view of
facts of the case.

Appeal-Appeal against acquittal-Scope of Interference-Power of D
appellate court-Held: Ordinarily acquittal order is not set aside where two
views are possible-However, appellate court is free to consider evidence
on record and to take into consideration whether trial court failed to take
into consideration admissible evidence or had considered the evidences
contrary to law and also where burden of proof was wrongly placed. E

The appellants-accused were tried for having caused death of 'R'
and his wife 'C' and also for attempt to commit murder of their son
- the first informant (PW I). All the appellants except appellant No. 5
were related to each other. The prosecution case was that there was
some land dispute between the accused and deceased. When both the F
deceased were irrigating their field, the appellants came to the agricultural
land of the deceased armed with double barrel gun, country made guns
and country made pistols. There was exchange of abuse between the
deceased and the appellants. Hearing the noise PW-2, PW-3, 'V' and
one 'S' arrived at the place of occurrence. Deceased persons and PW G
1 were shot by the appellants. Both the deceased ran a few paces, but
fell down at some distan~e. PW-I thereafter went to Police Station with
P.W. 2 and 'V'. He lodged FIR at about 00.25 a.m. On 13.4.1992. FIR
was dispatched to the Court at about 6.25 a.m. on 13.4. I 992, but the
same reached the Court on 18.4.1992. At the Police Station one Sub-
H
715
t
716 SUPREME COURT REPORTS [2006] SUPP. 2 S.C.R.

A Inspector was present, but St of the Police Station (PW-7) was not there.
PW-7 after receiving wireless message reached the place of occurrence
at night. Medical examination of PW-I was done by PW-4 at about 4
a.m. on 13.4.1992. However the advised X-ray was taken on 18.4.1992
by PW-6 whereby an opaque substance was found which according to
the doctor wa~ a metallic pellet. The dead bodies, though were sent for
B autopsy on 13.4.1992, the post-mortem of the same was done on
14.4.1992.

PWs 1, 2 and 3 were examined as eye-witnesses. Trial Court
acquitted the appellants on the grounds that the FIR was ante-timed and
C ante-dated; exact time of occurrence was not proved; the injuries on the
person of PW-1 were doubtful, the evidence of PWs 2 and 3, who were
chance witnesses, were not reliable; and that the medical evidence did
not support prosecution case. Division Bench of High court convicted
the accused.

D In appeal to this Court, appellants contended that prosecution
failed to prove that injuries suffered by PW-1 was a gun shot injury;
that medical evidence did not support the prosecution version of mode
and manner of the incident; that the delay in sending the FIR to the
Court has not been explained; that the delay in getting postmortem of
E the dead bodies and non-availability of the doctors for the same has not
been explained; that the delay in getting post mortem of the dead bodies
and non-availability of the doctors for the same has not been explained;
that from the medical report it appeared that death could have taken
place any time between 3 p.m. on 12.4.1992 and 3 p.m. on 13.4.1992 as
F only liquified substance was found in the stomach; The eyewitnesses
PWs 2 and 3 were related witnesses; non-examination of 'V' and the
eye-witnesses has not been explained.

Allowing the appeal, the Court

G HELD: 1. High Court does not ordinarily set aside a judgment
of acquittal in case where two views are possible, although, the view
of the Appellate Court is a more probable one. It is, however, true that
the High Court, while dealing with judgment of acquittal, is free to
consider the entire evidences on record so as to arrive at a finding as
H to whether the views of the Trial Judge is perverse or otherwise bad
BUDH SINGH v. STA TE 717

.in law. The appellate court shall also be entitled to take into consideration A
as to whether in arriving at a finding of fact, the Trial Judge has failed
to take into i:onsideration admissible evidence and has taken into
consideration evidences brought on record contrary to law. Similarly,
wrong placing of burden of proof may also be a subject matter of the
scrutiny by the appellate court. (726-G-H, 727-A-B]
B
Balak Ram v. State of U.P., [1975] 3 SCC 219; Shambhoo Missir
and Anr. v. State of Bihar, (1990] 4 SCC 17; Shailendra Pratap and Anr.
v. State of UP., (2003] 1 SCC 761; Narendra Singh and Anr. v. State of
MP., (2004] 10 SCC 699; Ranjitsing Brahmajeetsing Sharma v. State of
Maharashtra and Anr., (2005] 5 SCC 294, referred to.
c
2.1. High Court was not correct in arriving at the conclusion that
the view of the Trial Court was wholly perverse and could not be
sustained on the materials brought on record by the prosecution.
(740-F-GJ
D
2.2. There is some amount of surmises and conjectures in the
opinion of the High Court that issuance of 'chiti mazroobi' to PWl was
not mandatory, that delay in medical examination of P.W 1 could be
on account of Investigating Officer not being· present in the Police
Station. The Investigating Officer although, might not have been
present at the police station, but according to the evidence available E
on records one Sub Inspector was present. The medical examination
report of PW 1 bore the date as 4.4.1997. Why such a wrong date was
mentioned, has not been explained. P.W. 1 in his cross-examination
categorically admitted that he received the chik report in the morning.
A suggestion was given to P.W. 5 that when he reached the place of
occurrence, the FIR was not in existence. P.W. 7 - the Investigating
F
Officer, in his deposition admitted that no date below the signature of
the Circle Officer in the first case diary had been mentioned. In terms
of the U.P. Police Regulation, the copies of the case diary were required
to be sent to the Superintendent of Police and other high officer the
next day. In this case the said requirement was not complied with. PW G
8 has also accepted that FIR was produced before the Court on
18.4.1992. (729-D-G)

Meharaj Singh v. State of U.P., (1994[ 5 SCC 188; Thanedar Singh
v. State of MP., (2002] I SCC 487; Rajeevan and Anr. v. State of Kera/a,
H
718 SUPREME COURT REPORTS [2006] SUPP. 2 S.C.R.

A (20~3) 3 SCC 355; Bijoy Singh and Anr. v. State of Bihar, (20021 9 SCC
147; Rajesh ra; Raju Chandulal Gandhi and Anr. v. State of Gujarat,
12002 J 4 sec 426, referred to.

2.3. There was no reason as to why the Sub-Inspector present in
the Police Station at the time when P.W I and 'V' had gone to lodge
B FIR, did not take up the investigation immediately. It is not the case
of the prosecution that PW-7 was the officer-in-charge of the Police
Station. Another Sub Inspector could have recorded the statement of
P.W. l as also of 'V'. According to P.W. 7, he recorded the statement
of eye-witnesses after sunrise on 13.4.1992. If that is so, he should have

c mentioned the said fact in the general diary after he came back to the
police station. He admittedly did not do so, although, the same was
required to be done in terms of Section 44 of the Police Act, 1861.
(733-C-E[

2.4. The High Court opined that the Investigating Officer might
D have taken the statement of the witnesses on the next day when he had
conducted a raid on the house of the accused. Admittedly, the copy of
the FIR reached the place of occurrence only in the morning of
13.4.1992. He did not have with him a copy of the FIR. Without a copy
of the FIR, it is surprising that he could make raids. (734-C-DJ

E 2.5. The Investigating Officer also did not explain as to why he
waited to make the investigation till 8 a.m. or 9 a.m. of 13th April,
1992. The Investigating Officer, who took over the investigation from
P.W. 7 and who had investigated only for 8 days, had not been
examined. The High Court noticed that P.W. 5, Constable gave
contradicting statements. He categorically stated that he had come to
F the place of occurrence at about 9 O'Clock with the Inspector. How
the FIR reached the hands of the Investigating Officer at 6-6.30 in the
morning is a mystery. If P.W. 5 is to be believed, the same would
clearly suggest that three eye-witnesses, as also P.W. 7 gave false
evidence. If P.W. 5 made some mixing statement, it was for the
G prosecution to examine. (740-D, 738-A-B, 738-F-GJ

2.6. The statement of P. W. 2 in his cross-examination goes to show
that PWs 2 and 3 were related to the complainant. (739-AJ

2.7. The High Court committed an error of record in opining that
H 'V' was not an eye-witnesses of the FIR, as in the FIR it has clearly
BUDH SINGH v. STATE 719

been stated that 'V' went with P. W. 1 to lodge the FIR and he was A
present .in the Police Station. [733-A-B)

2.8. Even the statement of 'S' an eye-witness had not been
recorded under Section 161. P.W. 1, who is an eye-witness, stated that
his evidence has been taken at about 7.30 a.m. and only thereafter,
inquest had been carried out. Although, inquest had been carried out B
in his presence, his signatures were not taken on the 'Panchnama'.
P.W. 2 stated that the Inspector did not examine him about the murder
at all and he did not meet the Inspector after sealing of the dead bodies.
The Investigating Officer-P.W. 7 did not contradict him.
[733-G-H, 734-A-B) c
2.9. The direction and dispersal of injury sustained by deceased
'R' did not tally with the prosecution case, which, according to the
Trial Judge, raises a doubt about the presence of the prosecution
witnesses. The High Court, however, opined that the pellets were of
small size and could be deflected easily and there is a possibility that D
pellets could change their direction after hitting them with a force. The
said opinion was arrived at by the High Court on the premise that the
dispersal of pellets, as mentioned in authoritative texts, were regular
factory made cartridges. The High Court failed to notice that appellant
No. 1 was said to have been carrying licensed double barrel gun and
thus authoritative text as regard direction and dispersal of the injuries
E
could be relied upon. The opinion of the High Court does not find
support from the medical evidence. [735-E-H, 736-C)

2.10. From the medical evidence, however, it appears that direction
of injury was from upwards to downwards, which belies the statement F
of the prosecution witnesses that both the deceased were in standing
position and in fact, were quarrelling with each other. The opinion of
the doctor is that at the time of firing deceased 'R' must have been
lying down and the firing must have been done from a distance, which
would mean from a higher level. In view of the nature of injuries
suffered by deceased, such firing was possible from a distance of 40 G
to 45 feet and not from a close range. He did not find any charring,
bleeding and tattooing marks. Furthermore, the margin of injury was
found to be inverted. No corresponding exit wound of the bullet was
found. Even so far the injuries found on left thigh and right thigh are
concerned, the same were inverted in nature. (736-C-F) H
720 SUPREME COURT REPORTS [2006] SUPP. 2 S.C.R.

A 2.11. Ir the medical evidence is to be relied upon, having regard to
the nature of ante-mortem injuries suffered by deceased it might not
have been possible for him to stand up and then run to some distance at
all. State had not been able to show that having regard to the nature of
the injuries suffered by deceased, it was possible for him to stand up as
he was in a lying down position and then, ruu a few yards. (737-A-DJ
B
Principles and Practice of Medical Jurisprudence (1984 Edition) by
Taylor and Modi 's Medical Jurisprudence and Toxicology (1967 Edition),
referred to.

C 2.12. lf, according to the doctor, some X-ray of the injury to P.W.
1 was to be taken, the same should have been taken immediately. Even
assuming that there was good reason for taking the X-ray on 18.4.1992,
it is significant to note, the X-ray plate had not been filed in the Court.
A supplementary injury report had been prepared by P.W. 6, but the
said report is not admissible in evidence, as the primary document, on
D the basis whereof he prepared his report, was not made available.
According to the Trial Court, although, the number of FIR was
mentioned, other details were lacking. (734-D-G I

2.13. P.W. 4 also noticed only a lacerated wound on the persons
E of P. W. 1. He did .10t see any pellet. He did not find any inverted wound.
The injury, according to the doctor was with a sharp round object,
which, according to the defence, could have bee!! self inflicted. Both the
Trial Judge as also the High Court did not place any reliance on the
ballistic report for cogent reasons: Firstly, the site of recovery of pellet
F had not been shown in the site plan; Secondly, the envelope, in which
the gun and the empty shell had been packed, did not bear the
signatures of the witnesses and; Thirdly, the exhibits were sent to the
ballistic expert after more than a month. [736-F-Hl

2.14. Trial Judge had drawn an adverse inference as no agricultural
G implement, as spade etc., were found at the place of occurrence. The
High Court, however, reversed the said findings stating that the deceased
and their son had been irrigating their field. Apart from the place where
they had been working had not been shown in the site plan, the High
Court was also not correct to hold that the agricultural implements
H were not necessary for preparing kyaries. (737-D-E, 737-G-H)
BUDH SINGH v. STATE (SINHA, J.] 721

2.15. Admittedly accused No. 6 (appellant No. 5) was not carrying A
any weapon. He admittedly had a dispute with 'V'. No role had
been attributed to the said accused. He did not have any dispute with
the deceased 'R' and 'C'. The prosecution did not lead any evidence
as to why he would join appellant Nos. 1 and 2 in commission of the
crime. Similarly, except making a statement that appellant Nos. 3 and
B
4 had been carrying some country made pistols and fired from their
respective weapons, no evidence has been brought on record to that
effect. [740-B-D]

CRIMINAL APPELLATE JURISDICTION Criminal Appeal No.
1123 of 1999. C

From the Final Judgment and Order dated 1.9.1999 of the High Court
of Judicature at Allahabad in Govt. Appeal No. 2079/1993.

Sushi! Kumar, Vinay Arora, Adolf Mathew, Sanjay Jain and R.P. D
Wadhwani for the Appellants.

Pramod Swamp and Jatinder Kumar Bhatia for the Respondents.

The Judgment of the Court was delivered by
E
S.B. SINHA, J. : The Appellants have preferred this appeal being
· aggrieved by and dissatisfied with the judgment and order dated 1.9.1999
passed by the High Court of Allahabad in Criminal Appeal No. 2079/93,
whereby and whereunder the judgment and order dated 13 .8.1993 passed by
the IVth Additional Sessions Judge, Moradabad in S.T. No. 604/2002
acquitting the Appellants herein for commission of offences under Sections
F
148, 302 and 307 /149 of the Indian Penal Code (' IPC', for short) and under
Section 27 of the Arms Act, 1959 was reversed convicting them under
Sections 148, 307/149 and 302/149 of the Indian Penal Code for intentionally
causing death of one Ram Gopal (deceased) and his wife Chatarvati, as also
for attempt to commit murder of their son Rajveer Singh (the first informant). G

Appellant No. 1-Budh Singh, Appellant No. 2-Prem Singh and
Appellant No. 3-Jagan Singh are real brothers. The Appellant No. 4-Mahesh
Singh is son of Budh Singh whereas Appellant No. 6-Rajendra Singh is son
of Prem Singh. Appellant No. 5-Ram Raj is not related to other Appellants, H
722 SUPREME COURT REPORTS (2006) SUPP. 2 S.C.R.

A but he is stated to be belonging to the group of the other appellants. The
deceased Ram Gopal owned agricultural land towards west side of the village
Lalapur Pipalsana. Some lands belonging to the Gram Samaj were situate
adjoining the said land. Appellant No. 1-Budh Singh and one Kanhai were
said to have illegally occupied about 40-45 bighas land of the said Gram
Samaj. They allegedly intended to take possession of the land belonging to
B the deceased on the pretext that the same also belonged to Gram Sabha. The
dispute between the parties in regard to the said land had been pending for
the long. At about 9.00 p.m. on 12.4.1992, the deceased and his wife
Chatarvati were said to be irrigating their sugarcane field with the help of
motor pump. It was said to be a moonlit night. A lantern had also been kept
c hanging from a nearby tree. The Appellants, at that point of time, allegedly
came to the agricultural land of the deceased. Appellant No. 1-Budh Singh
was said to be armed with double barrel gun, whereas Prem Singh, Jagan
Singh and Ram Raj were armed with country made guns and Mahesh and
Rajendra Singh were said to be armed with country made pistols. They
D stopped running of the motor, as a result whereof there had been exchange
of abuses. The appellants allegedly said that the land belonged to Gram
Samaj and they would cultivate the same. At that Time, hearing the noise,
Chet Ram-P.W. 2, Shiv Singh-P.W. 3, Veer Singh and Sawan Singh
allegedly arrived at the place of occurrence. They were allegedly having
E torches is their hands. The Appellant No. I-Bugh Singh allegedly fired from
his gun upon Ram Gopal, whereas Appellant No.5-Ram Raj fired a shot on
the wife of the deceased Chatarvati. Appellant No. 6-Rajendra Singh is said
to have fired a shot on Rajveer Singh. Other accused persons also stated to
have fired their respective weapons. On receiving injuries on their person,
both Ram Gopal and his wife Chatarvati ran a few paces, but fell down dead
F at some distance. P.W. 1-Rajveer Singh, who was, at the material time, about
16 years old, thereafter went to the house of one Hori Singh and scribed a
First Information Report (FIR). He, thereafter, went to the Thakurdwara
Police Station is a tractor belonging to one Jagraj Ram accompanied by two
persons, namely, Chet Ram-P.W. 2 and Veer Singh. The police station was
G situated, at a distance of about 28 kms. from the place of occurrence. He
lodged a First Information Report at about 00.25 hours 13.4.1992. The said
FIR was dispatched to the Court at about 6.25 a.m. on 13.4.1992, but the
same reached the Court on 18.4.1992. At the police station, one R.A. Singh,
Sub-Inspector was present. A wireless message was also allegedly sent at
H about 1.00 a.m. to P.W. 7-S.P.S. Thomar, S.I. of the police station, who was,
BUDH SINGH v. STATE [SINHA, J.] 723

at the relevant point of time, posted at the police outpost Suraj Nagar. The A
said P.W. 7-S.P.S. Thomar reached the place of occurrence. He found the
dead bodies lying on the field. He also made an attempt to arrest the accused
in the night. In the meantime, P.W. l, who had also received a gun shot
injury, was examined by P.W. 4-Dr. S.K. Verma, the Medical Officer
(lncharge) of the Primary Health Centre, Thakurdwara at about 4 a.m. on
13.4.1992. He advised P.W. 1 that an X-ray of the injured part of the body
B
required to be taken. X-ray however, was taken on 18.4.1992 by P.W. 6-
Dr. Om Mehrotra, Senior Radiologist, District Hospital, Moradabad, who
found an opaque substance which, according to him, was a metallic pellet
seen in upper part of right arm of P.W. I.
c
P.W. 1 allegedly came back to his village at about 6 a.m. in the
morning. The inquest of the dead bodies started at 8 a.m. and concluded at
9.30 in the morning on 13.4.1992. The dead bodies were sent in a tractor
for autopsy at about 12-12.30 during the day time by P.W. 5-Constable
Chandra Sen. The post-mortem examination of both the dead bodies were, D
however, not done on 13.4.1992, because no autopsy surgeon was available.
The post-mortem of the deceased was carried out by P ..W. 9-Dr. Madan
Mohan, G.D.M.O., Central Police Hospital, Moradabad on 14.4.1992. The
ante-mortem injuries found on the dead bodies are as under.

"Injuries found on the dead body of Ram Gopal : E
1. Multiple gun shot wounds entry 0.3 cm x 0.3 cm in front of chest,
abdomen above the interior sup. Illiac spine in an area 40 cm x
2 cm. Margins inverted and lacerated. No charring blackening and
tattooing present. On opening the left Jung and heart, pleura and F
pericardium underneath are lacerated. Direction posterior and
downward.

2. Gun shot woun~ 0.3 cm x 0.3 cm entry in front and outer and
upper part of right thigh above 12 cm below the ant. Sup. Illiac
spine, margin lacerated and inverted. No charring blackening and G
tattooing present.

3. Gun shot wound entry 0.3 cm x 0.3 cm in front of left thigh .....
(sic) 10 cm below interior, superior illiac spine ..... (sic) with
margins inverted. No charring blackening present." H
724 SUPREME COURT REPORTS (2006] SUPP. 2 S.C.R.

A "Injuries found on the dead body of Chatarvati :

I. Gun shot wound of entry 6 cm x 3 cm on rt. Side chest upper
part over clavical medical part x chest cavity deep. Piece of left
lung cavity out of no injuries. Margin lacerated inverted. Skin
around this wound is charred, blackened and tattooing present.
B The right clavical 1st rib, rt. and Ilnd rib, right fractured.
Direction from anterior to posterally medially and size 18
metallic pellets, one Cap and two wadding recovered from the
right lung and cavity with Abrasion 2 cm x Y. cm on left side
chest below the left clavical middle part."
c Before the learned Trial Court, P.W. 1-Rajveer Singh, P.W. 2-Chet
Ram and P. W.-Shiv Singh were examined as eye-witnesses to the occurrence.
Three police personnel being P.W. 5-Constable Chandra Sen, P.W. 7-S.P.S.
Tomar and P. W. 8-Constable Shailesh Tyagi were examined to prove the
post-mortem report of the deceased as also the injury report of P.W. I. P.W.
D 4-Dr. S.K. Verma, P.W. 6-Dr. Om Mehrotra and P.W. 9-Dr. Madan Mohan
were examined whereas the radiobgical report was proved by P. W. 6. The
learned Trial Judge, by reason of a judgment and order dated 13.8.1993,
acquitted the appellants, inter alia, holding :

(i) The First Information Report was ante-timed and ante-dated;
E
(ii) The exact time of occurrence has not been proved;

(iii) The injuries on the person of P.W. l was doubtful;

(iv) The evidences of P.W. 2 and P.W. 3, who were chance witnesses,
F were not reliable;

(v) The medical evidence does not support the prosecution case.

On an appeal preferred thereagainst by the State, a Division Bench
G of the High Court, on the other hand, by a judgment and order dated
1.9.1999, reversed the said judgment of the Trial Court.

Mr. Sushi! Kumar, learned Senior counsel appearing on behalf of the
appellant submitted that the High Court committed a manifest error in
interfering with the judgment of the Trial Court without assigning sufficient
H and cogent reasons therefor. The learned Senior Counsel urged that the

ll
BUDH SINGH v. STATE [SINHA, J.] 725

prosecution has failed to prove that the injuries suffered by P. W. 1 was a A
gun shot injury. The learned Counsel also contended that the prosecution
failed to prove its case from all angles. In this connection, our attention
has been drawn to the fact that if, the medical evidence is taken to be
correct, the mode and manner in which the occurrence took place cannot
be said to have been proved. It is further submitted that the prosecution
has failed to explain as to why the FIR, which is said to have been lodge
B
on 13.4.1992 at about 00.25 hours, was received by the Court of Chief
Judicial Magistrate on 18.4.1992. The explanation sought to be given that
the said FIR was; not directly sent to the Court, but through the Circle
Officer, also does not satisfy the mandatory requirement of the provisions
contained in section 157 of the Code of Criminal Procedure ("Cr.P.C.", for c
short). It was furthermore urged that P.W. 5, who had taken the dead bodies
for getting the post-mortem examination done, although started at about
12.30 in the noon, failed to prove that as to why the post-mortem
examination could not be held till 14.4.1992 and why the doctors were not
available. From the post-mortem report, the learned counsel would submit
D
it would appear that the death could have taken place any time between
3. p.m. on 12.4.1992 and 3 pm. on 13.2.1992, as only liquefied substance
had been found in the stomach. Even in regard to the time of arrival of
P. W. 5 at the District Headquarters, the said explanation has not been
entered in the General Diary. He did not even given any statement before
the Investigating Officer under Section 161 Cr.P.C. The learned counsel E
would submit that P.W. 7, who, at the relevant point of time, was not the
officer-in-charge of Thakurdwara Police Station, took up the investigation
of the case. He, however, investigated the matter only for eight days. The
prosecution has not produced any officer who had investigated the case
thereafter. It was further submitted that even in the site plan drawn by F
P.W.7, the place from where the cartridges had been recovered, has not
been shown. We have been taken through the deposition of the eye-
witnesses. Our attention has particularly, been drawn to the fact that the
agricultural lands belonging to P.W. 3 being situated at a distance of half
a kilometer from the place of occurrence, there was no reason as to why
at the time when the incident took place, they would suddenly come G
together and witness the entire occurrence. The said witnesses, according
to the defence, were related to the deceased. It was further submitted that
the prosecution has also failed to explain as to why Veer Singh, who had
accompanied P.W. I to the Police Station and who had admittedly on
inimical terms with the Appellant No. 6, had not been examined. Similarly H
726 SUPREME COURT REPORTS [2006] SUPP. 2 S.C.R

A no explanation has been offered by the prosecution for non-examination of
the eye-witnesses.

Mr. Pramod Swarup, learned counsel appearing on behalf of the State,
on the other hand, supported the impugned judgment of the High Court. The
learned counsel contended that in view of the consistent evidence adduced
B on behalf of the prosecution, that not only the FIR was lodged at about mid
night at 00.25 hours on 13 .4.1992, but the same having been dispatched to
the Court at 6.24 hours, it was established that the FIR was not ante-timed.
Our attention, in this connection, has also been drawn to the fact that in the
inquest report, the crime number has been mentioned, which would clearly
c prove that the FIR has been lodged prior thereto. Under what circumstances
it reached to the Court of Chief Judicial Magistrate only on 18.4.1992,
according to Mr. Swarup, might not have been explained but only because
of the said, the prosecution case cannot be thrown out. The learned counsel
further urged that P.W. 1 was medically examined by Dr. S.K. Venna-P.W.
4. He had only found a lacerated wound which was a simple injury and might
D not have thought it necessary to provide him with any further medical
treatment or advised him to take any X-ray on that date itself and thus, the
same had been taken on 18.4.1992.As the report had been proved by the
Radiologist, Dr. Om Mehrotra-P. W. 6, non-production of X-ray plate,
according to the learned counsel, would not be material.
E
Our attention has been drawn to the evidence of P.W. 9-Dr. Madan
Mohan. It was submitted that from a perusal of the post-mortem examination
report, it would appear that no undigested food was found in the stomach
of the deceased. They had taken their food at 10 a.m. in the morning on
F 12.4.1992 and only some liquid was found in their stomach which would
clearly go to show that they might have taken water or other liquid substance
and in that view of the matter, the learned Trial Judge was not correct in
doubting the time of death, as disclosed by PWs. 1, 2 and 3.

The Trial Court, as noticed hereinbefore, recorded a judgment of
G acquittal upon assigning several reasons. Before adverting to the rival
contentions of the parties, it will be beneficial to remind ourselves about
the established principles of law that the High Court does not ordinarily
set aside a judgment of acquittal in case where two views are possible, ·
although, the view of the Appellate Court is a more probable one. It is,
H however, true that the High Court, while dealing with a judgment of
BUDH SINGH v. STATE [SINHA, J.] 727

acquittal, is free to consider the entire evidences on record so as to arrive A
at a finding as to whether the views of the Trial Judge is perverse or
otherwise bad in law. The Appellate Court shall also be entitled to take
into consideration as to whether in arriving at a finding of fact, the Trial
Judge has failed to take into consideration admissible evidence and has
taken into consideration evidences brought on record contrary to law.
Similarly, wrong placing of burden of proof may also be a subject matter B
of the scrutiny by the Appellate Court.

In Balak Ram v. State of UP., [1975] 3 SCC 219 this Court has held:

"The aforesaid discussion of the various items of evidence
must at least yield the result that the conclusion to which the. c
learned Sessions Judge came was a reasonable conclusion to come
to. It cannot be denied that two views of the evidence are
reasonably possible in regard to the participation of Nathoo, Dr.
Kohli and Banney Khan. The High Court, therefore, ought not to
have interfered with the judgment of the Sessions Court in their
favour."
D

In Shambhoo Missir & Anr. v. State of Bihar, [1990] 4 SCC 17, it was
held :

"The High Court did not deal with any of these circumstances pointed
out by the trial court and has given no reasons to negative them or to show E
as to how they were either improper, unjustified or unreasonable. We are,
therefore, of the view that High Court has interfered with the order of
acquittal passed by the trial court not only for no substantial reasons but also
by ignoring material infirmities in the prosecution case."

Yet again in Shailendra Pratap & Anr. v. State of UP., [2003] l SCC F
761, the law was laid down in the following terms :

"Having heard learned counsel appearing on behalf of the parties we
are of the opinion that the trial court was quite justified in acquitting the
appellants of the charges as the view taken by it was a reasonable one and
the order of acquittal cannot be said to be perverse. It. is well settled that G
the appellate court would not be justified in interfering with the order of
acquittal unless the same is found to be perverse. In the present case, the
High Court has committed an error in interfering with the order of acquittal
of the appellants recorded by the trial court as the same did not suffer from
the vice of perversity." H
728 SUPREME COURT REPORTS [2006] SUPP. 2 S.C.R.

A In Narendra Singh & Anr. v. State of M.P., [2004] 10 sec 699,
wherein one of us (Sinha, J.) was a partly it was categorically held that the
Court must bear in mind the presumption of innocence of the accused in
setting the law. The said view has been reiterated in Ranjitsing Brahmajeetsing
Sharma v. State of Maharashtra & Anr., [2005] 5 SCC 294 in the following
terms :
B
"Presumption of innocence is a human right. (See
Narendrasingh v. State of M.P., SCC para 31.) Article 21 in view
of its expansive meaning not only protects life and liberty but also
envisages a fair procedure. Liberty of a person should not ordinarily
c be interfered with unless there exist cogent grounds therefor. Sub-
section (4) of Section 21 must be interpreted keeping in view the
aforementioned salutary principles. Giving an opportunity to the
Public Prosecutor to oppose an application for release of an accused
a;Jpears to be reasonable restriction but clause (b) of sub-section (4)
of Section 21 must be given a proper meaning."
D
The main contention of the appellant is that the FIR is ante-timed. The
learned Trial Judge, in his judgment, assigned three reasons in support of
his finding that it was so.

E It is not in dispute that the written report, although, is said to have been
lodged at 00.25 hours on 13.4.192, the same was received in the Court of
the Judicial Magistrate as late as on 18.4.1992. The only explanation offered
by P. W. 5 was that although the same has been sent at 6.25 in the evening,
it could not be sent directly, as in view of the provisions, the same was
F to be sent through the Circle Officer. The State has not offered any
explanation as to why the Circle Officer, a post held by an officer of the
rank of Deputy Superintendent of Police, would not act responsibly. Section
157 Cr.P.C. as also Article 21 of the Constitution of India provide for a
safeguard in such a manner directing that FIR should be sent to the Court
of Chief Judicial Magistrate within a period of 24 hours.
G
The learned Trial Judge further was of the opinion that the copy of
the FIR had not been served upon the complainant P. W I forthwith and
the signature of the informant had also not been obtained in chik report
(sic for check). There was no reason as to why Rajveer Singh was not sent
H for medical examination immediately after registration of the case, although
BUDH SINGH v. STATE (SINHA, J.] 729

the Primary Health Centre was situated nearby the police station. The Trial A
Judge further noticed that 'chiti mazroobi' had not been sent from the police
station to examine the injured. Such a 'chiti mazroobi', according to the
learned Trial Judge, would contain not only the details of the accused, but
full particulars of the case, as also the injuries appearing on the person of
the victim.
B
The High Court, however, reversed the said findings opining that
issuance of 'chiti mazroobi' was not mandatory, particularly, when P.W. 1
was sent for medical examination along with a Head Constable. It was fuAher
opined that the Investigating Officer not being present in the police station,
there might have been a delay in medical examination by the doctor. The c
High Court, without any evidence on record, held that the doctor might not
be available and he must have gone to his house for taking rest. It was further
opined that P.W. 1 being a young man, must have acted in accordance with
the directions of the police.

There is some amount of surmises and conjectures in the opinion of
D
the High Court. The Investigation Officer-P.W. 7, although, might not have
been present at the police, station, but according to the evidence available
on records one R.A. Singh was present. The medical examination report of
Rajveer Singh bore the date as 4.4.1997. Why such a wrong date was
mentioned, has not been explained. P.W. I in his cross-examination E
categorically admitted that he received the chik report in the morning. A
suggestion was given to P. W. 5 that when he reached the place of occurrence,
the FIR was not in existence. P.W. 7, the Investigating Officer, in paragraph
19 of his deposition admitted that no date below the signature of the Circle
Officer in he first case diary had been mentioned. The date, which appeared F
in the case dairy, is 16.4. In terms of the U.P. Police Regulation, to which
we may short to a little later, the copies of the case diary were required
to be sent to the Superintendent of Police and other high officer the next
day. In this case the said requirement was not complied with.

P.W. 7 further admitted that some numerical had been written on the G
said page but he could not say who wrote them and what was the significance
thereof. It further appears from his evidence that no name of the accused had
been recorded on the inquest and other papers, which were 18 in number.
He could not infer even the gist of the incident from the face of the inquest
report. He admitted that he was not able to understand the contents of column H
730 SUPREME COURT REPORTS [2006] SUPP. 2 S.C.R.

A 2 of the inquest, i.e., the manner of the report. According to him, he had
merely read in the said column "murder by gun shot". He admittedly had
not mentioned about the nature of the weapon or the person who was
responsible for the murder, although in the FIR not only the nature of weapon
was mentioned, it was categorically stated as to how the incident took place,
including the fact that the DBBL gun held by appellant No. l herein was
B a licensed gun.

Yet again, to P.W. 8, Shailesh Tyagi, clear suggestion was given that
"writing of diary was stopped" and FIR was recorded when Investigating
Officer returned in the afternoon on 13 .4.1992 from the place of occurrence
c and thereafter the special report was sent. The FIR, according to the said
witness, was sent by post. He merely stated that the Constable who went to
the police station, which was at a distance of 50 kms. from the Headquarter,
took with him the FIR also but no date or case number had been mentioned
in the prescribed column.

D
He accepted that the FIR was produced before the Court of Chief
Judicial Magistrate on 18.4.1992.This Court in Meharaj Singh v. State of
U.P., [1994] 5 SCC 188, as regards the requirement of sending of the FIR
to the Court, the inquest report as also the requirements to comply with other
formalities provided for external checks, categorically held :
E
"FIR in a criminal case and particularly in a murder case is
a vital and valuable piece of evidence for the purpose of appreciating
the evidence led at the trial. The object of insisting upon prompt
lodging of the FIR is to obtain the earliest information regarding
the circumstance in which the crime was committed, including the
F
names of the actual culprits and the parts played by them, the
weapons, if any, used, as also the names of the eyewitnesses, if any.
Delay in lodging the FIR often results in embellishment, which is
.a creature of an afterthought. On account of delay, the FIR not only
gets bereft of the advantage of spontaneity, danger also creeps in
G of the introduction of a coloured version of exaggerated story. With
a view to determine whether the FIR was lodged at the time it is
alleged to have been recorded, the courts generally look for certain
external checks. One of the checks is the receipt of the copy of the
FIR, called a special report in a murder case, by the local Magistrate.
H If this report is received by the Magistrate late it can give rise to
BUDH SINGH v. STATE [SINHA, J.] 731

an inference that the FIR was not lodged at the time it is alleged A
to have bee recorded, unless, of course the prosecution can offer
a satisfactory explanation for the delay in despatching or receipt of
the copy of the FIR by the local Magistrate. Prosecution has led no
evidence at all in this behalf. The second external check equally
important is the sending of the copy of the FIR along with the dead
body and its reference in the inquest report. Even though the inquest
B
report, prepared under Section 174 Cr.P.C., is aimed at serving a
statutory function, to lend credence to the prosecution case, the
details of the FIR and the gist of statements recorded during inquest
proceedings get reflected in the report. The absence of those details
is indicative of the fact that the prosecution story was still in an c
embryo state and had not been given any shape and that the FIR
came to be recorded later on after due deliberations and consultations
and was then ante-time to give it the colour of a promptly lodged
FIR. In our opinion, on account of the infirmities as noticed above,
the FIR has lost its value and authenticity and it appears to us that
D
the same has been ante-timed and had not been recorded till the
inquest proceedings were over at the spot by PW 8."

The said decision of this Court was followed by a Three Judge Bench
of this Court in Thanedar Singh v. State of MP., [2002] l SCC 487 and also
in, Rajeevan & Anr. v. State of Kera/a, [2003] 3 SCC 355 and Bijoy Singh E
& Anr. v. State of Bihar, [2002] 9 SCC 147.

We are, however, not oblivious of the fact that Meharaj Singh (supra)
has been distinguished in Rajesh@ Raju Chandulal Gandhi & Anr. v. State
of Gujarat, [2002] 4 SCC 426, stating : F
"Relying upon the judgment of Meharaj Singh (L!Nk.) v. State
of UP. the learned counsel appearing for the appellants has
submitted that FIR in a criminal case is a vital and valuable piece
of evidence for the purpose of appreciating the evidence led in the
trial. The object of insisting upon prompt lodging of the FIR is to G
obtain information regarding the circumstances in which the crime
was committed including the names of actual culprits and the part
played by them, the weapon of offence used as also the names of
the witnesses. One of the external checks which the courts generally
look for is the sanding of the copy of the FIR along with the dead H
732 SUPREME COURT REPORTS [2006] SUPP. 2 S.C.R.

A body and its reference in the inquest report. The absence of details
in the inquest report may be indicative of the fact that the
prosecution story was still in embryo and had not been given any
shape and that the FIR came to be recorded later on after due
deliberations and consultation and was then ante-timed to give it a
colour of promptly lodged FIR. The reliance of learned counsel for
B the appellant on Meharaj Singh case is of no help to him in the
instant case inasmuch as all requisite details are mentioned in
panchnama Exhibit P-32. Mere omission to mention the number of
the FIR and the name of the complainant in Ext. P-3 7 has not
persuaded us to hold that the FIR was ante-timed in view of the
c peculiar facts and circumstances of the case as noticed by the trial
court, the High Court and by us hereinabove."

Th State ofU.P. had made regulations in terms of the Police Act, which
are statutory in nature. Regulation 97 provides as to how and in what from
the information relating to commission of a cognizable offence when given
D
to an officer-in-charge of a police station, is to be recorded. Such a First
Information Report, know as chik (check) report, should be taken out in
triplicate in the prescribed form and the "true facts should be ascertained by
a preliminary investigation'. In the event a written report is received, an exact
copy thereof should be made and the officer-in-charge of the station is
E required to sign on each of the pages and put the seal of the police station
thereupon. The duplicate copy is to be given to the person who brings the
written report and the original thereof must be sent to the Superintendent of
Police. Regulation I08 emphasizes the need of maintaining the case diary
stating that time and place should be noted in the diary b)' the Investigating
F Officer when beginning the investigation; whereafter only, he should inspect
the scene of the alleged offence and question the complainant and any other
person who may be able to throw light on the circumstances. Regulation I 09
provides that the case diary must contain the particulars required by Section
172 of the Code of Criminal Procedure in sufficient detail so as to enable
the supervising officer to appreciate the facts.
G
The learned Trial Judge, in view of the aforementioned conduct of the
prosecution and the available materials on records, was of the opinion that
defence version is possible. The learned Trial Judge recorded that the
statement of Veer Singh had not been recorded by the Investigating Officer.
H The High court opined that Veer Singh was not an eye-witness of the FIR.
BUDH SINGH v. STATE [SINHA, J.] 733

The High Court committed an error of record as in the FIR it has clearly A
been stated that Veer Singh went with the complainant P.W. 1-Rajveer Singh
to lodge the FIR and he was present in the police station. In the FIR it was
clearly stated :

"On commotion my uncle Veer Singh and Chetram son of
Kalu, Shiv Singh son of Chotte, Sawan son of Bhaggan of our
B
village reached there flashing their torches."

The High Court was of the view that evidence shows that the
investigation of the case was entrusted to P.W. 7-S.P.S. Tomar, but he was
not present at the police station. The said finding may be correct but it has c
also been brought on record that one R.A. Singh was present. There was no
reason as to why he did not taken up the investigation immediately. It is not
the case of the prosecution that S.P.S. Tomar was the officer-in-charge of
the police station. Shri R.A. Singh could have recorded the statement of P. W.
1, as also the said Veer Singh. According to P.W. 7, he recorded the
statement of eye-witnesses after sunrise on 13.4.1992. If that is so, he should
D
have mentioned the said fact in the general diary after he came back to the
police station. He admittedly did not do so, although, the same was required
to be done in terms of Section 44 of the Police Act, 1861, which is in the
following terms :
E
"44. Police-officers to keep diary. - It shall be the duty of every
officer-in-charge of a police-station to keep a general diary in such
from as shall, from time to time, be prescribed by the State
Government and to record, therein, all complaints and charges
preferred, the names of all persons arrested, the names of the F
complainants, the offences charged against them, the weapons or
property that shall have been taken from their possession or
' 0
otherwise, and the names of the witnesses who shall have been
examined.

The Magistrate of the district shall be at liberty to call for and G
inspect such diary."

Furthermore, even the statement of Sawan Singh had not been
recorded under Section I61. P. W. 1, who is an eye-witness, stated that his
evidence has been taken at about 7.30 a.m. and only thereafter, inquest had H
734 SUPREME COURT REPORTS (2006] SUPP. 2 S.C.R.

A been carried out. Although, inquest had been carried out in his presence,
his signatures were not taken on the ·Panchayatnama·. P.W. 2-Chet Ram
stated that the inspector did not examine him about the murder at all and
he did not meet the inspector after sealing of the dead bodies. The
Investigating Officer, who was examined as P.W. 7 did not contradict him.

B We do not know as to whether copy of the statement of P. W. 2,
recorded in terms of Sectfon 161 Cr.P. C., had been handed over to the
accused. Even the same is not available on record.

The High Court opined that the Investigating Officer might have taken
C the statement of the witnesses on the next day when he had conducted a raid
on the house of the accused. Admittedly, the copy of the FIR reached the
place of occurrence only in the morning of 13.4.1992. He did not have with
him a copy of the FIR. Without a copy of the FIR, it is surprising that he
could make raids.

D P.W. I was stated to have been examined on 4 O'clock in the morning
on 13.4.1992. He, however, stated that he was examined at about 1/1.30
a.m.

If, according to the doctor, some X-ray was to be taken, the same
should have been taken immediately. Assuming the High Court is right in
E its observations that he must have been busy in relation to the investigation
in regard to death of his parents, he was admittedly available in the town
on 13th April. Post-mortem examination had only been carried out on
14.4.1992. There was not reason as to why he was not taken for an X-ray
on 13.4.1992. Even assuming that there was good reason for taking the X-
F ray on 18.4.1992, it is significant to note, the X-ray plate had not been filed
in the Court. A supplementary injury report had been prepared by P.W. 6,
but the said report is not admissible in evidence, as the primary document,
on the basis whereof he prepared his report, was not made available. He
could have been effectively examined as regards the correctness or
otherwise of the report only if the X-ray plate was placed on record.
G According to the Trial Court, although, the number of FIR was mentioned,
as we have noticed hereinbefore, other details were lacking. There
Investigating Officer also did not explain as to why he waited to make the
investigation till 8 a.m. or 9 a.m. of 13th April, 1992.

H According to the High Court's opinion .
BUDH SINGH v. STATE [SINHA, J.] 735

"It is quite likely that he may have thought of commencing A
inquest after finishing the daily chores of life like going to toilet,
taking a bath and having some break fast. After touching a dead
body many people do not eat anything without taking a bath. It is
quite likely that P.W. 7 may have thought of commencing holding
of inquest after taking break fast etc."
B
No such explanation has been offered by P.W. 7. The opinion of the
High Court is based on the surmises and conjectures. We may, at this
juncture, also notice the medical evidences brought on record. P.W. 9-Dr.
Madan Mohan, performed the post-mortem examination. He conducted the
post-mortem examination on 14.4.1992 both of Ram Gopal and Chatarvati. c
The death, according to him, took place on 1Yz day before the examination,
which would take us about 10 p.m. on 12.4.1992. The ante-mortem injuries
found on the body of Ram Gopal are already mentioned. He, in his evidence,
stated :

"The direction of injury No. 1 of Ram Gopal was from
D
upwards to downwards. The injury No. I is possible is somebody
is lying and one fires from the siae of head towards the legs from
the top keeping his barrel parallel to the direction of body, from ~
distance. But then in that condition injuries No. 2 and 3 are not
possible from one fire. There is a bleak possibility that Ram Gopal E
had received all the three injuries, from three different shots."

The direction and dispersal of injury sustained by-Ram Gopal did not
tally with the prosecution case, which, according to the learned Trial Judge,
raises a doubt about the presence of the proserntion witnesses. The High
F
Court, however, opined that the pellets were of small size and could be
deflected easily and there is a possibility of it that pellets could change their
direction after hitting them with a force. The said opinion was arrived at by
the High Court on the premise that the dispersal of pellets, as mentioned in
authoritative texts, were regular factory made cartridges. The High Court
failed to notice that appellant No. I was said to have been carrying licensed G
double barrel gun and thus authoritative text as regard direction and
dispersal of the injuries could be relied upon. The High Court, in this
regard, opined as under :

"The dispersal of the pellets as mentioned in authoritative H
736 SUPREME COURT REPORTS [2006] SUPP. 2 S.C.R.

A texts is with regard to regular factory made cartridges. Besides
Budh Smgh. the remaining five accused were carrying country
made pistols and country made guns. It is quite likely that locally
made or hand-filled cartridge had been used where the position of
dispersal of pellets may be entirely diffent.''

B We have not been shown that there was any injury to the bone. Only
Budh singh, according to P.W. 1, was responsible for firing from his double
barrel licensed gun. It had been noticed by the learned Trial Judge, as also
by us, the ante-mortem injuries suffered by Ram Gopal. The opinion of the
High Court does not find support from the medical evidence.
c
The prosecution witnesses, namely, P.Ws. I, 2 and 3 further stated that
the appellants and the deceased had been standing. According to them, only
appellant No. 1 fired one shot. From the medical evidence, however, it
appears that the direction of injury was from upwards to downwards, which
belies the statement of the prosecution witnesses that both of them were in
D
standing position and in fact, were quarrelling with each other. The opinion
of the doctor is that at the time of firing Ram Gopal must have been laying
down and the firing must have been done from a distance, which would mean
from a higher level. In view of the nature of injuries suffered by Ram Gopal,
such firing was possible from a distance of 40 to 45 feet and not from a close
E range. He did not find any charring, bleeding and tattooing marks. Furthermore,
the margin of injury was found to be inverted. No corresponding exit would
of the bullet was found. Even so far the injuries found on left thigh and right
thigh are concerned, the same were inverted in nature. The reasons assigned
by the learned Trial Judge in this behalf, thus, cannot be said to be perverse.
F
P.W. 4-Dr. S.K. Verma also noticed only a lacerated wound on the
person of P.W. I. He did not see any pellet. He did not find any inverted
wound. Had he noticed any, he would have mentioned the same. The injury,
according to the doctor was with a sharp round object, which, according to
the defence, could have been self inflicted. It is also of some significance
G to note that both the learned Trial Judge as also the High Court did not
place any reliance on the ballistic report of cogent reasons : Firstly, the site
of recovery of pellet had not been shown in the site plan; Secondly, the
envelope, in which the gun and the empty shell had been packed, did not
bear the signatures of the witness and; Thirdly, the exhibits were sent to the
H ballistic expert after more than a month, i.e., on 15.5.1992.
BUDH SINGH v. STATE [SINHA, J.] 737

P.W. l, in his evidence stated that apart from both his parents, he A
himselfreceived gun shot injuries in a standing position and the accused were
also standing. According to him, his father Ram Gopal ran towards the
southern direction after being shot, whereas his mother ran towards north-
west. He also ran towards the south. If the medical evidence is to be relied
upon, having regard to the nature of ante-mortem injuries suffered by Ram
Gopal, it might not have been possible for him to stand up and then run to
B
some distance at all. The High Court referred to the Priilciples and Practice
of Medical Jurisprudeace (1984 Edition) by Taylor and Modi's Medical
Jurisprudence and Toxicology (1967 Edition) for the purpose of showing that
there are many instances where persons had been found to be walking to
some distance after receiving gun shot injury in the heart or even run to some c
distance. The learned counsel appearing on behalf of the State ha.d not been
able to show before us that having regard to the nature of the injuries suffered
by Ram Gopal, it was possible for him to stand up as was in a laying down
position and then, run a few yards.

D
The learned Trial Judge had drawn an adverse inference as no
agricultural implement, as spade etc., were found at the place of occurrence.
The High Court, however, reversed the said findings stating that the deceased
and their son had been irrigating their field. P. W. 1, however, in his evidence
categorically stated :
E
"I was away from the Engine. I flashed the torch as others who
were having torches were also far from the engine. I was working
at about 10 steps from the engine when the accused came. My
mother and father were working near me. I was towards south from
the engine. I was making bed (kyari) in the feld. Father was making F
the bed (kyari). Mother was sitting. We both were making the bed
(ky,ari) with held of spade. We left the there was the field. When
Inspector came at the spot, there was no spade. I had shown to the
Inspector the place where we were working. I cannot state the
reason if he has not shown the same in the map. I cannot say who
had taken away the spades." G

Apart from the place where they had been working had not been shown
in the site plan, the High Court was also not correct to hold that the
agricultural implements were not necessary ror preparing kyaries.
H
738 SUPREME COURT REPORTS [2006] SUPP. 2 S.C.R.

A Indisputably it was P.W. 5, who had taken the dead bodies for post-
mortem examination. The High Court noticed that P.W. 5, Constable
Chandra Sen gave contradicting statements. He categorically stated that he
had come to the place of occurrence at about 9 O'clock with the Inspector.
How the FIR reached the hands of the Investigating Officer at 6-6.30 in the
morning is a mystery.
B
The High Court opined as under :

"It may be mentioned that in his examination-in-chief this
witness has merely stated about carrying the dead bodies to the
c Head Quarter for their post mortem examination. At three different
places in his cross-examination (paras 4 and 8) he has said that the
matter had become very old and he does not remember the facts.
He is not an eye witness of the occurrence nor he gave his
statements after refreshing his memory from records. As a constable
posted to a police station he may have accompanied the Sub
D Inspector or Inspector of Police to scenes of commission of crime
on many occasions and may have carried the dead bodies to the
Head Quarter for post mortem examination. It is quite likely that
on account of confusion of mixing of facts with some other case,
he may have stated that he reached the spot at 9 a.m. If this is
E accepted, it would mean that all the three eye witnesses and P.W.
7 S.P.S. Tomar gave false statements that the latter had reached the
spot around 1.30 in the night. If his entire cross examination is read,
it will clearly show that he did not remember the fact regarding
reaching of the 1.0. or distance of the bodies and place where they
F were lying and not much importance can be attached to the same."

The evidence on record does not lead to such an inference. If P.W. 5
is to be believed, the same would clearly suggest that three eye-witnesses,
as also P.W. 7 gave false evidence. If P.W. 5 made some mixing statement,
it was for the prosecution to examine. According to him,· he had been
G present at the place of occurrence throughout the day, till the dead bodies
were sent to the Head Quarter.

The Trial Court disbelieved the evidence of P.W. 2 and P.W. 3. But
P.W. 3 had changed his statement regarding place of occurrence where
H Chatarvati had sustained injuries. The ante-mortem injuries found on the
BUDH SINGH v. STATE (SINHA, J.] 739

dead body of the Ram Gopal clearly belied the statements of P.Ws. I, 2 and A
3. The High Court, however, held that P.Ws. 2 and 3 were not related to
the complainant. The following statement of P. W. 2 in his cross-examination
goes to show that they were related to the complainant :

"The name of may father was Kallu. I have no knowledge how
many brothers my grandfather, Guljari were. I do not know my B
grandfather were five brothers. I do not know if Bihari, Gangu,
Bhola, Sandhu were brothers of my grandfather. Ram Gopal and
Veer Singh are son of Heera. The name of Heers's father was
Nannu. The name ofNannu's father was Bihari. Shiv singh was son
of Chotte. I do not know if Chotte was son of Bihari. I do not know C
if Nannu and Chotte are brothers. It is wrong to suggest that I am
concealing deliberately that I am cognate to the Ram Gopal, Veer
Singh and Shiv Singh.

Prem and Jagan are separated. They have different fields and
kitchens."
D

P.W. 3 also .stated as under:

"My father were two brothers. The name of father's brother
was Thakura, I do nos know the name of my grandfather. It is wrong E
to suggest that Nanua was also brother of my father. I do not know
the name of my granilfather was Bihari. Heera is son ofNanua. The
name of Nanua's father is not Bihari. I have no relatoin with
Chetram. Chetram is witness in this case. He has no relationship
with me. I am not uncle of Veer Singh." F
It will bear repetition to state that according to P. W. 2, his statements
had not been taken by P.W. 7 under Section 161 Cr.P.C. It is interesting to
note what P.W. 7 in his evidence stated :

" .. .! cannot tell about the distance between the place where the G
dead body of Chatarvati was found and the road which goes towards
village from fields which had been shown in site plan, as I had not
measured the aforesaid distance. I had not seen the fields of
witnesses Veer Singh, Chetram, Shiv Singh & Savan Singh from
where after completion of their work they had reached at the place H
740 SUPREME COURT REPORTS [2006] SUPP. 2 S.C.R.

A of occurrence. I cannot tell the length of the field having trees
belonging to Meer Hasan which is South to the field of witness
Chetram, it is very long. No marks of blood was found between the
place HD and 'G'. There was heavy crowd in the night."

We may notice that admittedly the accused No. 6 was not carrying any
B weapon. He admittedly had a dispute with Veer Singh. Veer Singh
accompanied the complainant to the police station. No role had been
attributed to the said accused. It .is not clear as to why he was implicated.
He did not have any dispute with the deceased, namely, Ram Gopal and
Chatarvati. The prosecution did not lead any evidence as to why he would
c join the appellant Nos. l and 2 in commission of the crime. Similarly,
appellant Nos. 3 and 4 were cousins. Except making a statement that they
had been carrying some country made pistols and fired from their respective
weapons, no evidence has been brought on record to that effect. We also
fail to understand as to why the Investigating Officer, who took over the
investigation from P.W. 7 and who had investigated only for 8 days, had
D not been examined. No explanation whatsoever has been offered by the
prosecution in this regard .

The version of the prosecution is that the lands belonging to P. Ws.
2 ai1d 3 were half a kilometer away and they do not have any field near
E the field of the deceased. There was no standing crops in the field. The
view of the Trial Court, having regard to the aforementioned facts and
circumstances of the case, was, therefore, a possible view and as such we
need not go into the other contentions as regards the motive or time of
death, vis-a-vis, the medical opinion etc.
F
For the reasons mentioned hereinbefore, we are of the opinion that the
High Court was not correct in arriving at the conclusion that the view of the
Trial Court was wholly perverse and could not be sustained on the materials
brought on record by the prosecution. This appeal is, therefore, allowed.

G The impugned judgment of the High Court is set aside. The appellants
are on bails. They are discharged from their bail bonds.

K.K.T Appeal allowed.