Supreme Court of India

RAM BALIversusSTATE OF UTTAR PRADESH

Citation: 2004 INSC 272
Decided: 16 April 2004
Disposal: Dismissed
Bench: DORAISWAMY RAJU

Holding

Credible ocular evidence corroborated by medical findings outweighs speculative medical opinions, and defects in investigation or delayed judgment do not merit overturning a conviction.

Summary

The appellant Ram Bali Singh was convicted of murder under Section 302 IPC based on the testimony of two eyewitnesses. He challenged the conviction alleging that medical evidence of an empty stomach contradicted the ocular evidence, that the investigation was defective because the gun was not forensic‑tested, that the judgment was delivered late, and that he had an alibi. The Supreme Court held that the medical opinion, derived from a textbook, was speculative and could not outweigh credible eyewitness testimony, especially when corroborated by medical findings. It further ruled that a defective investigation or delayed judgment does not, by itself, justify overturning a conviction, and the alibi claim was unsupported. Consequently, the Court dismissed the appeal and upheld the conviction.

Issues considered

Whether a discrepancy between eyewitness (ocular) evidence and medical evidence regarding time of death creates reasonable doubt.
Whether textbook opinions on digestion time can be used to overturn credible eyewitness testimony.
Whether failure to send the firearm for forensic testing constitutes a defective investigation warranting acquittal.
Whether delayed delivery of judgment affects the fairness of the trial.
Whether the appellant's alibi that he was in jail at the time of the incident is substantiated.
Whether the non‑examination of other alleged eyewitnesses defeats the prosecution case.

Legislation cited

Indian Penal Code, 1860s. 302

Subjects

murderocular evidencemedical evidencedigestive timedefective investigationforensic testingdelayed judgmentalibievidentiary valuecriminal law

Judgment

RAM BALI A
v.
STATE OF UTTAR PRADESH

APRIL 16, 2004

[DORAISWAMY RAJU AND ARIJIT PASAYAT, JJ.] B

Criminal Trial:

Murder-Ocular evidence vis-a-vis medical evidence-Discrepancy
between-Effect of-Absence offood in the;stomach ofdeceased-Evidentiary C
value of-Held: The time taken to digest food varies from individual to
individual, the quantum of food taken etc.-Empty stomach not a relevant
factor to throw doubt about the correctness of the time of incident-Only
when ocular evidence was wholly inconsistent with medical evidence, th,e
Court must consider the effect thereof D
Defective investigation-Effect of-Held: In the case of defective
investigation Court must be circumspect in evaluating the evidence-When
direct evidence corroborated by medical evidence fully established prosecutidn
version, accused could not be acquitted merely on account of defective
investigation. E
According to the prosecution, there was enmity between the family
members of the complainant and the appellant-accused due to litigations
and for that reason the appellant-accused had assassinated the deceased.
The trial Court convicted the appellant-accused and the High Cous:t
affirmed the conviction. Hence the appeal. F
On behalf of the appellant-accused, it was contended that the medical
evidence was clearly at variance with the ocular evidence; that the
deceased had taken lunch at 2 PM but the postmortem showed the stomach
of the deceased was empty_ which proved that the incident took place G
around 9 PM and not around 6 PM as alleged; that the investigation was
defective inasmuch as the gun was not sent for forensic test; and that thF
judgment was delivered long after the hearing was closed and, therefore,
the arguments made before the High Court had not been properly
considered.
195 H
196 SUPREME COURT REPORTS [2004) SUPP. I S.C.R.

A Dismissing the appeal, the Court

HELD: 1. The statement of as to what transpired at the hearing, the
record in the judgment of the Court are condusive 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
B 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 the only way to have the record corrected.
It is not open to the appellant to contend before this Court to the contrary.
(200-C-D)
c State of Maharashtra v. Ramdas Shrinivas Nayak, (1982) 2 SCC 463,
Bhavnagar University v. Palitana Sugar Mill (P) Ltd., (2003) 2 SCC 11 and
Roop Kumar v. Mohan Thedani, (2003) 6 SCC 595, relied on. ·

2.1. The plea that the medical evidence is contrary to the ocular
D evidence has no substance. It is merely based on the purported opinion
expressed by an author. Hypothetical answers given to hypothetical
questions, and mere hypothetical and abs.tract 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,
E 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 the 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
F thereof. (200-E.,.GJ
Pattipati Venkaiah v. State of A.P., AIR (1985) SC 1715 and Nihal
Singh v. State of Punjab, AIR (1965) SC 26, relied on.

2.2. An author's view which is an 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 particula.r case on hand. (201-C)

HWV Cox : "Medical Jurisprudence and Toxicology" 7th Edn. pp.
300-302, referred to.

H 3.1. In the case of a defective investigation the Court has to be
RAMBAL!v. STATEO~U.P. [PASAYAT,J.] 197

circumspect in evaluating the evidence. But it would not be right in A.
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. 1201-D-EI

Kamel Singh v. State of MP., (19951 5 sec 518 and Paras Yadav v.
State of Bihar, (19991 2 sec 126, relied on. B
3.2. When the direct testimony of the eyewitnesses corroborated by
the medical evidence fully establishes the prosecution version, failure or
omission or negligence on the part of the IO cannot affect credibility of
the prosecution version. (202-B-CI
c
Amar Singh v. Ba/winder Singh, 120031 SCC 518, relied on.

4. The plea of delayed delivery of judgment and the same rendering
it vulnerable is without any substance. [202-F-GI

Anil Rai v. State of Bihar, (20011 7 SCC 318, relied on. D

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 204
of 2003.

From the Judgment and Order dated 28.11.2002 of the Allahabad High
Court in Crl. A. No. 3406 of 1984. E
S.B. Sanyal, Yashbanto Das, D.K. Singh and Abhijit Sengupta for the
Appellants.

Garvesh Kabra and Ravi Prakash Mehrotra for the Respondent.
F
The Judgment of the Court was delivered by

ARIJIT PASAYAT, J. A Division Bench of the Allahabad High Court
by the impugned judgment upheld the conviction recorded by learned Special
Judge, Hamirpur holding appellant guilty of offence punishable under Section
302 of the Indian Penal Code 1860 (in short 'IPC). Accused-appellant was G
sentenced to undergo imprisonment for life. However, co-accused Rajendra
Singh was acquitted.

Background facts which led to trial are as follows :

Complainant-Ram Singh (PW-1) at the time of occurrence was living H
198 SUPREME COURT REPORTS [2004) SUPP. 1 S.C.R.

A 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 Oak Bungalow and waited for the bus. At that time a bus came
B from Hamirpur. Appellant-Rambali Singh (A-1) and Rajendra Singh (A-2)
residents of village Chhani Bujurg got down from that bus.

Accused Rambali had a double barrel gun in his hand and a single
barrel gun was in the hands of the acquitted accused Rajendr~ Singh. After
that they went to a nearl,>y betel shop. From there they came and stood in
C 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 (cilled"the
deceased who died at the spot. The complainant and others raised alarm and
the accused ran away to~ards 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
D 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 wa1> lodged, investigation was undertaken.

On completion of investigation charge-sheet was placed and matter was
E taken up for trial after framing charges. Six witnesses were examined to
further the prosecution case. Out of six witnesses examined, PWs l 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 a5 alleged to have
F happened. One Ram Kishan Gupta had called him from his village Swasa on
motorcycle. The Trial Court accepted the version of PWs l and 2 as a correct
reflection of what had happened and placing reliance on their evidence directed
conviction. But, as noted above, co-accused Rajendra was acquitted by the·
High Court.

G Ii;t 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 ~igh
Court had fallen into grave error by placing reliance on the evidence of PWs
H l and 2. Though the accused allegedly used a gun, it was not sent for forensic
RAMBALlv. STATEOFU.P. [PASAYAT,J.] 199
testing. Evidence on record establishes that the village was a dacoit infested, A
for which police patrolling just before the alleged incident took place. A
Constable (PW-5) had gone to the village, but nobody reported anything to
him. PW-2 had stated that the deceased had taken lunch at about 2.00 p.m.
When the doctor conducted post-mortem he found that the stomach was
empty. With reference to the textbook "Medical Jurisprudence and Toxicology" B
by HWY 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 e
motorcycle to reach the police station. The doctor's view noted in the post-
mortem regarding rigor mortis also improbabilises the time of occurrence as
alleged. Therefore, PWs 1 and 2 cannot be truthful witnesses. This is a case
where the High Court's judgment is not maintainable because there was no
prop~r appraisal of the evidence in the background of submissions made by
the accused-appellant. As there is perversity in appreciation and want of care D
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 E
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 purpos~ of identification and
.was not present. Three witnesses were examined to substantiate the plea that F 1

the accused-appellant was not present at the time of incident. It was submitted
that the plea of alibi set up by the accused-appellant has been erroneously
brushed aside without any reasonable basis.

In response, learned counsel for the State supported the judgments of
the Courts below and urged that the evidence have been critically examined
01
in the proper perspective and there is no infirmity to warrant any interference
to the concurrent findings recorded by the Courts below so far as the guilt
of the accused is concerned.

Learned counsel for the respondent submitted that the discrepancy . H 1
200 SUPREME COURT REPORTS [2004) SUPP. 1 S.C.R.

A between the ocular version and the medical evidence was not even pleaded
before the High Court. The plea relating to belated delivery of judgment
cannot according to. the respondent be pressed into service.

At the. outset, it is to be noted that before the High Court only two
points were said to have been urged. They are as follows:
B
{I) No witness has witnessed the incident and the accused have been
falsely implicated because of enmity.
(2) The accused Ram Bali Singh went to jail on 20. 7.1982 for
identification and he was not present at the time of incident.
c We notice that the High Court specifically records that only two points
were urged before it. It has to be noted that the statement of as to what
transpired at the hearing, the record in the judgment of the Court are conclusive·
of the facts so stated and no one can contradict such statement on affidavit
or by other evidence. If a party thinks that the happenings in Court have been
D 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)
E 20 SCC 111 and Roop Kumar v. Mohan Thedani, [2003) 6 SCC 595.

Even otherwise, the plea that the medical evidence is contrary to the
ocular evidence has also no substance. It is merely based on the purported
opinion expressed by an author. Hypothetical answers given to hypothetical
F 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
G 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
H be determined in a computerised or mathematical fashion so as to be accurate
RAMBALlv. STATEOFU.P. [PASAYAT,J.] 201
to the last second. The state of the contents of the stomach found at the time · A
of medical examination is not a safe guide for determining the time of
occurrence because that would be a matter of speculation, in the absence of
reliable evidence on the question as to when exactly the deceased had his last
meal and what that meal consisted of. In Niha/ Singh and Ors. v. The State
of Punjab, AIR (1965) SC 26, it was indicated that the time required for B
digestion may depend upon the nature of the food. The time also varies
according to the digestive capacity. The process of digestion is not uniform
and varies from individual to individual and the health of a person at a
particular time and so many other varying factors.

Factors were also noted by HWV Cox in his book referred to by learned C
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 Jet in to prove a fact - which invariably
depends upon varied facts, and according to the peculiar nature of a particular
case on hand. The only inevitable conclusion is that the plea is without any
substance, apart from the fact that the said plea pertaining to mere appreciation
of facts was not raised before the High Court.

The investigation was also stated to be defective since the gun was not
sent for forensic test. In the case of a defective investigation the Court has
to be circumspect in evaluating the evidence. But it would not be right in

- acquitting an accused person solely on account of the defect; to do so would
tantamount to playing into the hands of the investigating officer if the
investigation is designedly defective. (See Karne/ Singh v. State of MP.,
E

[1995) 5 sec 518).

In Paras Yadav and Ors. v. State of Bihar, [1999) 2 SCC 126 it was ! F
held that if the lapse or omission is committed by the investigating agency I
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 G
courts in finding out the truth, ifthe materials on record are otherwise credible
and truthful; otherwise the designed mischief at the instance of biased or
interested investigator would be perpetuated and justice would be denied to
the complainant party, and in the process to the community at large.

As was observed in Ram Bihari Yadav v. State of Bihar and Ors., I H
202 SUPREME COURT REPORTS [2004] SUPP. 1 S.C.R.

A [1998) 4 sec 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. Ba/winder Singh and Ors.,
B [2003) 2 SCC 5 I 8. 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
C the part of the IO cannot affect credibility of the prosecution version.
' '
It has been explained by the pro~ec~tion as tci 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,
D explanation offered appears to be plausible, in the absence of any material to
the contrary.

Another plea which was emphasised related to non-examination of
alleged eye-witnesses. This plea was also not pressed before the High Court.
In any event, the investigating officer and the witnesses have been examined
E to explain the reason as to why the others were not examined and nothing has
been brought on record to discredit those claims. The Trial Court has also
analysed this aspect and found no substance in the plea of the accused.

The plea relating to alleged absence was examiqed by the Trial Court
F and the High Court. It was noticed that no material was produced to show
that at the point of time, when the occurrence took pface, accused-appellant
was present in the jail for the purpose of identification. We find no infirmity
in the conclusions of the Courts below in rejecting the plea of alibi.

We also find that the plea of delayed delivery of judgment and the
G same rendering it vulnerable is without any substance. In Anil Rai's case
(supra) this Court has only stressed upon the desirability of early delivery of
judgments. In fact, the judgment impugned before this Court in the said case
was not set-aside on the ground of delayed delivery of judgment and was
dealt on merits. In paras 10 and 45 of the judgment this Court had indicated
options to a party in case judgment is not delivered for considerably long
H time. We are unable to appreciate that any detriment as such was caused to
RAMBALiv. STATEOFU.P. [PASAYAT,J.) 203
the appellant on that account alone, on the peculiar facts of the case, as well. A
There is no scope for reappraisal of evidence and interference with the
concurrent findings of fact. This Court is not ordinarily to go into the credibility
of the findings and interference is pennissible 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 B
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.

v.s.s. Appeal dismissed. C

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