UMESH SINGHversusSTATE OF BIHAR

                     [2013] 4 S.C.R. 7'::!7


                       UMESH SINGH                                  A
                               v.
                      STATE OF BIHAR
              (Criminal Appeal No. 43 of 2010)
                      MARCH 22, 2013
                                                                    B
          [CHANDRAMAULI KR. PRASAD AND
               V. GOPALA GOWDA, JJ.]

     Penal Code, 1860 - s. 302 rlw s. 34 - Murder - Deceased
was shot at with revolver and rifle - Several accused -             C
Conviction of accused-appellant - Justification - Held: Justified
- Statement of related eye-witness (PW2) was rightly treated
as FIR - Evidence of PW2 supported by other witnesses
(PW3, PW5 and PW7) - Claim of appellant that he was falsely
implicated not tenable - His conviction based on legal              D
evidence on record and on proper appreciation of the same
- Arms Act - s. 27.

      Evidence - Rigor mortis - Time of death - Opinion of
 doctor regarding complete vanishing of rigor mortis from the       E
 dead body after 36 hours - Correctness of - Held: Not correct
- The medical officer deposed contrary to the rule of medical
jurisprudence - On facts, the same could not be the basis for
 acquittal of the accused.

    Evidence - Discrepancy between medical and ocular               F
evidence - Effect -Held: Between medical and ocular
evidence, .the ocular evidence must be preferred.

     The prosecution case was that while the deceased
.was going alongwith his cousin brother (PW2) to catch              G
 a bus, the accused-appellant and the other accused
 persons, namely, Awadhesh Singh, Sudhir Singh, Jaddu
 Singh, Nawal Singh, Binda Singh surrounded the
 deceased and thereafter murdered him by shooting him
                              797                                   H
    798      SUPREME COURT REPORTS            [2013] 4 S.C.R.


A with a revolver and rifle. The trial court (Additional
  Sessions Judge) convicted the accused persons under
  Section 302 read with Section 34, IPC and under Section
  27 of the Arms Act and awarded sentence of
  imprisonment for life under Section 302 read with Section
B 34, IPC. The High Court set aside the conviction and
  sentence insofar as Awadhesh Singh, Jaddu Singh and
  Nawal Singh is concerned who were held not guilty under
  Section 302 read with section 34, IPC but affirmed the
  conviction and sentence in relation to the appellant.
c      In the instant appeal, the appellant challenged his
    conviction and sentence.

          Dismissing the appeal, the Court

D        HELD: 1.1. PW2, the cousin brother of the deceased,
    accompanied him on the date of occurrence of the
    incident. At that point of time the appellant, along with
    other accused, surrounded them and it is stated that the
    appellant shot at the Kanpatti with revolver and other
E   accused persons Binda Singh with the rifle in the
    stomach of the deceased and Sudhir Singh with rifle in
    the left thigh. PW7 has stated in his evidence that the
    aforesaid accused persons fled away at that time Ashok
    Singh, Damodar Singh, Bairam Singh and Shyam Sunder
    Singh were going to the bazaar who have witnessed the
F   incident. His evidence is supported by the evidence of the
    other witness namely PW3, who has stated that he has
    seen Moti Singh and Jaddu Singh catching both hands
    of the deceased and Moti Singh ordered him to fire and
    the said witness also spoken about the firings by
G   Awadhesh Singh and Nawal Singh as stated by the PW2.
    Further, he has supported his evidence that Awadhesh
    Singh pushed the dead body in the Payeen and also
    stated that Moti Singh and Jaddu Singh had caught hold
    of the informant also. PW5 also claimed to have seen
H   Jaddu Singh and Moti Singh catching hands of the
         UMESH SINGH v. STATE OF BIHAR                799


deceased and further he has stated that Umesh Singh, A
the appellant, had fired at the temple region of the
deceased. Further, he has given categorical statement.
stating that Binda, Sudhir, Awadhesh and Nawal also
had fired at the deceased with their rifles. Therefore, the
evidence of PW2 has been supported by PW3, PWS and B
PW7. In so far as PW6 is concerned he has given a
general statement that he has seen the several persons
surrounding the deceased and killing the deceased with
rifle and revolver. Therefore, the trial court was right in
recording the finding on the charge against the appellant c
on proper appraisal of the evidence of the eye-witness
PW2 supported by PW3 and PWS. The said finding of fact
on the charge of Sections 302 read with section 34, IPC
against this appellant and others was seriously
examined by the High Court and concurred with the same
                                                            0
and in view of the evidence of PW2 and PW9 the
informant who was eye-witness and the 1.0.'s evidence
regarding his evidence treating the statement of PW2 as
FIR is perfectly legal and valid. [Para 14) [815-D-H; 816-
A-E]
                                                             E
     1.2. The doctor-PW8 opined that rigor mortis starts
within 1 to 3 hours and vanishes after 36 hours. The said
opinion of the medical officer PW8 regarding complete
vanishing of rigor mortis from the dead body after 36
hours is medically not correct and this may be lack of his
                                                             F
knowledge on the subject and he was liberal to the cross-
exam ination by the defence lawyer. The Additional
Sessions Judge has rightly held that PW8 the medical
officer, has deposed contrary to the rule of medical
jurisprudence, and therefore, the same cannot be the
basis for the defence to acquit the accused. The             G
Additional Sessions Judge has rightly referred to Medical
Jurisprudence Digest written by B.L. Bansal, which
clearly mentions that the rigor mortis persists from 12 to
24 hours and then passes off but it means that the faster
the rigor mortis appears, the shorter time it persists.      H
    800    SUPREME COURT REPORTS              [2013) 4 S.C.R.


A Further, rightly the Additional Sessions Judge has
  referred to the Bolin Hulder case wherein it has been held
  that at the same climate of India, rigor mortis may
  commence in an hour to two and begin to disappear
  within 18 to 24 hours. The claim by the appellant that the
B deceased has been killed at an anterior point of time and
  the allegation that the accused has been falsely implicated
  in the case has been rightly rejected by the Additional
  Sessions Judge and the same has been concurred with
  by the High Court by assigning the valid and cogent
c reasons in the impugned judgment. The State counsel
  has rightly urged that if the medical and ocular evidence
  is contrary then the ocular evidence must prevail.
  Between medical and ocular evidence, the ocular
  evidence must be preferred. [Para 16] [819-B-E; 820-A-D]

D       Abdul Sayeed v. State of Madhya Pradesh (2010) 10
    SCC 259: 2010 (13) SCR 311 and Boo/in Hulder v. State
    1996 Crl.L.J. 513 - relied on.

        State of A.P. v. Punati Ramulu (1994) Suppl.1 SCC 590;
E Mussauddin Ahmed v. State of Assam (2009) 14 SCC 541;
  T. T. Antony v. State of Kera/a (2001) 6 SCC 181: 2001 (3)
  SCR 942; Deo Pujan Thakur v. State of Bihar (2005) Crl.L.J.
  Patna 1263; Thangavelu v. State of TN (2002) 6 SCC 498;
  Moti v. State of U.P. (2003) 9 SCC 444; Kunju Mohd. v. State
F of Kera/a (2004) 9 SCC 193; Virendra v. State of U.P. (2008)
  16 SCC 582: 2008 (14) SCR 706; Baso Prasad v. State of
  Bihar (2006) 13 SCC 65: 2006 (9) Suppl. SCR 431; Binay
  Kumar v. State of Bihar (1997) 1 SCC 283: 1996 (8) Suppl.
  SCR 225 and Dinesh Kumar v. State of Rajasthan (2008) 8
G sec 270: 2008 (11) SCR 843 - cited.

        Medical Jurisprudence Digest by B.L. Bansal Advocate,
    (1996 Edition at page 422) - referred to.

      2. The order of conviction and sentence imposed
H against the appellant is on the basis of legal evidence on
        UMESH SINGH v. STATE OF BIHAR                 801


record and on proper appreciation of the same. The same     A
is not erroneous in law as the finding is supported with
valid and cogent reasons. [Para 17] [820-F-G]
                   Case Law Reference:
    (1994) Suppl.1 sec 590       cited           Para 4     B

    (2009) 14 sec 541            cited           Para 5
    2001 (3) SCR 942             cited           Para 6
    (2005) Crl.L.J. Patna 1263   cited           Para 6     c
    (2002) 6 sec 498             cited           Para 8
    (2003) 9 sec 444             cited           Para 8
    (2004) 9 sec 193             cited           Para 8
                                                            D
    2008 (14) SCR 706            cited           Para 8
    2006 (9) Suppl. SCR 431      cited           Para 8
    1996 (8) Suppl. SCR 225      cited           Para 10
    2008 (11) SCR 843            cited           Para 11    E

    2010 (13) SCR 311            relied on       Para 15
    1996 Crl.L.J. 513            relied on       Para 16

    CRIMINAL APPELLATE JURISDICTION: Criminal Appeal        F
No. 43 of 2010.

    From the Judgment and Order dated 22.05.2003 of the
High Court of Patna in Criminal Appeal No. 318 of 1998.

   Amarendra Sharan, Samir Ali Khan, Dhruv Pal, Somesh      G
Chandra Jha, Aparajita Mukherjee for the Appellant.

    Chandan Kumar, Gopal Singh for the Respondent.

    The Judgment of the Court was delivered by
                                                            H
    802     SUPREME COURT REPORTS                  [2013] 4 S.C.R.


A      V. GOPALA GOWDA, J. 1. This appeal is filed by the
  appellant aggrieved by the common judgment dated 22nd May,
  2003 passed in Crl.A.Nos. 241, 247, 271 and 318of1998 in
  affirming the conviction and sentence of the appellant for the
  offence punishable under Section 302 read with Section 34
B l.P.C. and Section 27 of the Arms Act urging various facts and
  legal contentions. The appellant herein was the appellant in
  Crl.A.No.318 of 1998 before the High Court. The impugned
  judgment passed in the said case is under challenge in this
  appeal.
c       2. The brief facts in relation to the prosecution case are
  stated hereunder to appreciate the rival legal contentions that
  are urged on behalf of the parties with a view to find out as to
  whether this Court is required to interfere with the concurrent
  finding offact recorded in affirming the conviction and sentence
D imposed against the appellant.

       3. The deceased Shailendra Kumar was murdered on
  16.07.1996 at about 3.30 p.m. by the appellant Umesh Singh
  and other persons, namely, Awadhesh Singh, Sudhir Singh,
E Jaddu Singh, Nawal Singh, Binda Singh @ Bindeshwari Singh
  by shooting him with a revolver and rifle with a criminal intention
  for unlawful purpose in furtherance of common intention along
  with other accused and to have in their possession of fire arms
  with an intention to use it for an unlawful purpose to commit
F murder of Shailendra Kumar along with accused nos.5 & 6 and
  another accused Moti Singh who is dead. They were charged
  under Section 302 read with Section 34, IPC. The case of the
  prosecution is that the deceased along with his cousin brother
  Arvind Kumar-PW2 were going to Tungi for catching a bus for
G Kothar on 16.7.96 at about 3.30 p.m. When they proceeded at
  a distance ahead of Tungi High School near Latawar Payeen,
  the accused persons named above surrounded them. The
  deceased accused Moti Singh is alleged to have exhorted his
  other associates to shoot the deceased Shailendra Kumar
  upon which the appellant herein took out a country made
H
          UMESH SINGH v. STATE OF BIHAR                     803
              [V. GOPALA GOWDA, J.]
revolver and pumped its bullets in the temple of the deceased       A
and accused no.2 who was having a rifle in his hand fired in
the abdomen of the deceased. Accused no.4 also shot a fire
causing injury in the leg of the deceased while accused no.3
also fired from his rifle. Accused no.5 was also having a rifle
and he threw the dead body of the deceased in the Payeen. It        B
is also the case of the prosecution that during the course of the
occurrence of the incident the informant PW2 Arvind Kumar
was kept over-powered by the deceased accused Moti Singh
and Jaddu Singh and after accomplishing the target, they left.
Further, the witnesses whose names were found in the                c
fardbeyan claimed to have seen the occurrence of the incident.
The fardbeyan was recorded by ASI RS Singh at about 7.00
p.m. on the same date at Tungi High School hostel, Latawar
Payeen and the inquest report of the dead body was also
prepared at the place of occurrence itself at 7.10 p.m. Seizure
                                                                    D
list of certain incriminating items including empty fired
cartridges which were recovered from the spot was also
prepared. Formal FIR was recorded and investigation was
taken up by the police. On concluding the investigation, the
 police submitted the charge sheet before the learned Chief
 Judicial Magistrate on the basis of which cognizance was taken     E
 by him and the case was committed to the Court of Sessions.
The learned Sessions Judge on his turn transferred the case
to the file of Second Additional Sessions Judge, Nawadah and
the charges were framed for the offence under Section 302
read with Section 34, IPC and Section 27 of the Arms Act. The       F
accused pleaded not guilty. The case went for trial and the
prosecution has examined the witnesses PW1 to PW9 and two
witnesses were examined in support of the defence. The
learned Additional Sessions Judge on appraisal of the
evidence and record passed the judgment dated 04.04.1998            G
imposing the conviction and sentence against the accused
persons under Section 302 read with Section 34, IPC and
under Section 27 of the Arms Act and awarded sentence of
 imprisonment for life under Section 302 read with Section 34,
IPC. The sentence awarded regarding the conviction under            H
    804      SUPREME COURT REPORTS                  [2013] 4 S.C.R.


A different heads of charges ordered were to run concurrently. The
  conviction and sentence passed by the Additional Sessions
  Judge was challenged by the accused in the appeals referred
  to supra before the High Court of Patna. The High Court after
  hearing all the accused/appellants passed the common
s judgment affirming the conviction and sentence in relation to the
  present appellant and set aside the conviction and sentence
  in so far as Awadhesh Singh, Jaddu Singh and Nawal Singh
  who were held to be not found guilty of the charges under
  Section 302 read with section 34, IPC, i.e. in the appeal
c nos.241/98 and 247/98. However, as far as the present
  appellant and others are concerned, the judgment passed by
  the learned Additional Sessions Judge was affirmed. During
   pendency of the appeals the accused by name, Moti Singh died
  and his appeal got abated.

D         4. The appellant has questioned the correctness of the
    findings recorded in the impugned judgment by the High Court
    in affirming the conviction and sentence awarded against him
    along with others. Mr. Amarendra Sharan, learned senior
    counsel appearing for the appellant contends that the High
E   Court has failed to notice the discrepancies in the evidence of
    the prosecution witnesses, it could have disbelieved the same
    but it has affirmed the conviction and sentence on this appellant.
    Further, even according to its own findings there were no eye-
    witnesses to the occurrence of the incident as the PWs arrived
F   at the scene of occurrence 15-20 minutes after the incident and
    the informant who was present at the spot has given different
    version in the evidence and the FIR regarding the role of the
    appellant. The statement of PW2 Arvind Kumar who is the
    cousin brother of the deceased is the basis on which the FIR
G   was registered and the Investigation of the case was made by
    the Investigating Officer. The PW2 was present at the time of
    occurrence and on the basis of his statement, the accused
    persons have been falsely implicated in treating his statement
    as FIR, the same is belated FIR which is not admissible in law
H   and also hit by Section 162, Cr.P.C. In support of this contention
          UMESH SINGH v. STATE OF BIHAR                        805
              [V. GOPALA GOWDA, J.)
he has placed reliance upon the judgment of this Court in State        A
of A.P. v. Punati Ramu/u 1• The relevant paragraphs read as
under:

     "3. In our opinion, the reasons recorded by the High Court
     for recording acquittal of the respondents is based on            8
     proper appreciation of evidence. The findings are not only
     supported by proper appreciation of the evidence but are
     also reasonable and sound. Thanks to the tainted
     investigation, the murder of Krishna Rao goes unpunished.
     But we must hasten to add that since the defence has been         C
     able to successfully challenge the bona fides of the police
     investigation, it has detracted materially from the reliability
     of the other evidence led by the prosecution also.

     5. Once we find that the investigating officer has
deliberately failed to record the first information report on          D
receipt of the information of a cognizable offence of the nature,
as in this case, and had prepared the first information report
after reaching the spot after due deliberations, consultations and
discussion, the conclusion becomes inescapable that the
investigation is tainted and it would, therefore, be unsafe to rely    E
 upon such a tainted investigation, as one would not know where
 the police officer would have stopped to fabricate evidence and
create false clues. Though we agree that mere relationship of
the witnesses PW 3 and PW 4, the children of the deceased
or of PW 1 and PW 2 who are also related to the deceased,              F
by itself is not enough to discard their testimony and that the
relationship or the partisan nature of the evidence only puts the
Court on its guard to scrutinise the evidence more carefully, we
find that in this case when the bona fides of the investigation
has been successfully assailed, it would not be safe to rely upon      G
the testimony of these witnesses either in the absence of strong
corroborative evidence of a clinching nature, which is found
wanting in this case."


1.   (1994) suppl. 1 sec 590                                           H
    806       SUPREME COURT REPORTS                  [2013] 4 S.C.R.


A        5. It was further contended by the learned senior counsel
    that the earlier information given by PW4 to the police was
    suppressed and by that time PW9- 1.0. had reached the scene
    of occurrence, the other police officer and S.P. of the District
    were very much present there. They were not examined in the
B   case to prove the prosecution case against the accused. Non-
    examination of the above persons as prosecution witnesses
    who are material witnesses to prove the prosecution case is
    fatal to the case as has been held by this Court in the case
    reported in Mussauddin Ahmed v. State of Assam 2 • The
c   relevant paragraph of the abovementioned case reads as
    under:

          "11. It is the duty of the party to lead the best evidence in
          its possession which could throw light on the issue in
          controversy and in case such material evidence is withheld,
D         the court may draw adverse inference under Section 114
          Illustration (g) of the Evidence Act, 1872 notwithstanding
          that the onus of proof did not lie on such party and it was
          not called upon to produce the said evidence (vide Gopal
          Krishnaji Ketkar v. Mohd. Haji Latif)."
E
         6. The learned senior counsel for the appellant further
    contended that not recording the information furnished by PW4
    to the police as FIR but treating PW2 information as FIR in the
    case though it is hit by Section 162, Cr.P.C. creates doubt in
F   the prosecution case and therefore benefit of doubt must be
    given to the accused by the trial court and the High Court. In
    support of the same, the learned senior counsel has placed
    reliance upon the judgment of this Court reported in TT Antony
    v. State of Kera/a3. The relevant paragraphs are extracted
G   hereunder:

          "18. An information given under sub-section (1) of Section
          154 CrPC is commonly known as first information report

    2.    (2009) 14 sec 541.
H   3.    (2001) B sec 1s1.
     UMESH SINGH v. STATE OF BIHAR                       807
         [V. GOPALA GOWDA, J.]
(FIR) though this term is not used in the Code. It is a very     A
important document. And as its nickname suggests it is
the earliest and the first information of a cognizable offence
recorded by an officer in charge of a police station. It sets
the criminal law in motion and marks the commencement
of the investigation which ends up with the formation of         B
opinion under Section 169 or 170 CrPC, as the case may
be, and forwarding of a police report under Section 173
CrPC. It is quite possible and it happens not infrequently
that more informations than one are given to a police
officer in charge of a police station in respect of the same     c
incident involving one or more than one cognizable
offences. In such a case he need not enter every one of
them in the station house diary and this is implied in
Section 154 CrPC. Apart from a vague information by a
phone call or a cryptic telegram, the information first
                                                                 0
entered in the station house diary, kept for this purpose,
by a police officer in charge of a police station is the first
information report - FIR postulated by Section 154 CrPC.
All. other informations made orally or in writing after the
 commencement of the investigation into the cognizable           E
 offence disclosed from the facts mentioned in the first
 information report and entered in the station house diary
by the police officer or such other cognizable offences as
may come to his notice during the investigation, will be
statements falling under Section 162 CrPC. No such
information/statement can properly be treated as an FIR          F
and entered in the station house diary again, as it would
in effect be a second FIR and the same cannot be in
conformity with the scheme of CrPC. Take a case where
an FIR mentions cognizable offence under Section 307 or
326 IPC and the investigating agency learns during the           G
investigation or receives fresh information that the victim
died, no fresh FIR under Section 302 IPC need be
registered which will be irregular; in such a case alteration
of the provision of law in the first FIR is the proper course
to adopt. Let us consider a different situation in which H       H
    808       SUPREME COURT REPORTS                     [2013] 4 S.C.R.


A         having killed W, his wife, informs the police that she is killed
          by an unknown person or knowing that W is killed by his
          mother or sister, H owns up the responsibility and during
          investigation the truth is detected; it does not require filing
          of fresh FIR against H - the real offender - who can be
B         arraigned in the report under Section 173(2) or 173(8)
          CrPC, as the case may be. It is of course permissible for
          the investigating officer to send up a report to the
          Magistrate concerned even earlier that investigation is
          being directed against the person suspected to be the
c         accused.

          19. The scheme of CrPC is that an officer in charge of a
          police station has to commence investigation as provided
          in Section 156 or 157 CrPC on the basis of entry of the
          first information report, on coming to know of the
D         commission of a cognizable offence. On completion of
          investigation and on the basis of the evidence collected,
          he has to form an opinion under Section 169 or 170 CrPC,
          as the case may be, and forward his report to the
          Magistrate concerned under Section 173(2) CrPC.
E         However, even after filing such a report, if he comes into
          possession of further information or material, he need not
          register a fresh FIR; he is empowered to make further
          investigation, normally with the leave of the court, and
          where during further investigation he collects further
F         evidence, oral or documentary, he is obliged to forward the
          same with one or more further reports; this is the import
          of sub-section (8) of Section 173 CrPC.

          20. From the above discussion it follows that under the
          scheme of the provisions of Sections 154, 155, 156, 157,
G         162, 169, 170 and 173 CrPC only the earliest or the first
          information in regard to the commission of a cognizable
          offence satisfies the requirements of Section 154 CrPC.
          Thus there can be no second FIR and consequently there
          can be no fresh investigation on receipt of every
H
            UMESH SINGH v. STATE OF BIHAR                    809
                [V. GOPALA GOWDA, J.]
     subsequent information in respect of the same cognizable        A
     offence or the same occurrence or incident giving rise to
     one or more cognizable offences. On receipt of information
     about a cognizable offence or an incident giving rise to a
     cognizable offence or offences and on entering the FIR in
     the station house diary, the officer in charge of a police      B
     station has to investigate not merely the cognizable
     offence reported in the FIR but also other connected
     offences found to have been committed in the course of
     the same transaction or the same occurrence and file one
     or more reports as provided in Section 173 CrPC."               c
Also, the Patna High Court, in the case of Deo Pujan Thakur
v. State of Bihat', opined as hereunder:

      "18. Considering the entire evidence on record and the
      circumstances which has been brought by the defence in         D
      course of argument it transpires that the prosecution with
      held the first information and did not produce it before the
      Court for the reasons best known to it. It did not examined
      independent witness though some of these names have
      been mentioned in the evidence of the prosecution              E
      witnesses and some of them even then were charge- sheet
      witness only family members and interested witnesses
      who are inimical have been examined. The fardbeyan on
      the basis of which formal FIR was drawn is hit by Section
      162, Cr PC. The post-mortem report as well as the              F
      evidence of PW 11 has corroborated the defence version
      of the case that the deceased was killed at a lonely place
      when he was coming after attending the call of nature. In
      the circumstances of the case the prosecution version is
      not reliable. The evidence which has been brought by the       G
      prosecution has failed to prove its case beyond all
      reasonable doubt. The judgment and order of conviction
      passed by the trial Court is not fit to be maintained."

4.   (2005) Crl. L.J. Patna 1263.                                    H
    810     SUPREME COURT REPORTS                 [2013] 4 S.C.R.


A       7. It was further contended by the learned senior counsel
  that the other PWs who were highly interested were examined
  in the case. The independent witnesses were available but were
  not examined in the case by the prosecution. Therefore, the
  prosecution case is fatal for non examination of the independent
B witnesses to prove the charge against the accused. Hence, the
  concurrent finding recorded by the High Court on the charge
  under Section 302 read with Section 34 against the appellant
  is erroneous in law. The High Court has failed to take into
  consideration the evidence of PW2 who, according to the
c prosecution, is an informant. In his evidence he has stated that
  the dead body was recovered thereafter the statement of PW2
  was recorded and he along with the other witnesses remained
   at the place of occurrence and none of them went to Police
   Station to inform the police. PW3 Damodar Singh in his
   evidence has stated that no body went to inform the police but
0
   PW4 Ashok Kumar has admitted in his evidence that his
   statement was recorded by a Judicial Magistrate where he had
   stated that he sent information to the police. PW9-1.0. has
   admitted in his evidence that on the information of Ashok Singh-
E PW4 he along with Officer-in-charge of the police station and
   several officers had gone to the place of occurrence before the
   fardbeyan was recorded and the case was registered. He has
   further stated that the fardbeyan was 'sent to police station and
   then he was made as 1.0. Further the High Court has failed to
   take into consideration the relevant aspect of the matter
F mentioned in the FIR under Column No.I fardbeyan was
   recorded at 7.00 p.m. and FIR was registered at 10.00 p.m.
   on 16.07.1996. The distance of the place of occurrence and
   the police station is about 16 kms. According to PW9, the 1.0.
   on 16.07 .1996 after 10 p.m. he was changed, therefore,
G learned senior counsel submits that on the basis of the
   evidence of PW4 Ashok Kumar and PW9 and in the light of
   the principles decided by this Court in the decisions referred
   to supra registering the FIR on the basis of statement of PW2
   is not admissible in law as the same is hit by Section 162,
H Cr.P.C. In view of the aforesaid facts and legal evidence
         UMESH SINGH v. STATE OF BIHAR                    811
             [V. GOPALA GOWDA, J.]
regarding registration of the FIR by the police the learned A
Additional Sessions Judge and the High Court should have
drawn judicial inference that registering the FIR on the basis
of statement of PW2, which is hit by Section 162, Cr.P.C. is
the result of manipulation of the case against the accused at
the. instance of the witnesses of this case and not registering B
the first information given by PW4 to the police station for the
reason that it was hearsay. This vital important aspect of the
matter ha.s been omitted by the Additional Sessions Judge and
the High Court. Therefore, the finding recorded in the impugned
judgment on the charge leveled against the appellant and c
others is erroneous in law and the same is liable to be set
aside. Further, the courts below have failed to appreciate the
fact that there was no motive for the appellant to murder the
deceased Shailendra Kumar but there is motive for false
implication of the accused by the witnesses in this case. The
                                                                 0
learned senior counsel placed reliance upon PW4 Ashok
Kumar's evidence wherein he has stated that Awadh Singh is
the brother of accused Binda Singh who had brought a case
against him and accused Umesh Singh and Bhuneshwar Singh,
father of Nawal were witness and PW5 Bairam Singh who is
full brother of deceased Shailendra Kumar has admitted in his E
 evidence that there was no enmity with accused and himself
and also with his two brothers, including the deceased.

     8. Further the learned senior counsel contended that the
High Court has failed to consider the medical evidence, which   F
does not support the prosecution case. According to the
prosecution, the occurrence of incident is said to have taken
place on 16.07 .1996 at 3.30 p.m. when the deceased was
going to join his duty from his village home. On the basis of
the post mortem report on record, in Column Nos.21 to 23,       G
PWS, the doctor clearly stated that not only stomach of the
deceased but both bladders were empty and the time elapsed
since death was 30 to 36 hours. Thereby the occurrence of
the incident must have taken place in the early .hours of
 16.07.1996 as the deceased must have empty stomach.            H
    812        SUPREME COURT REPORTS               (2013] 4 S.C.R.


A Further, in the evidence of PW8, the description of the injuries
  in the post mortem report are also not in accordance with the
  allegations made by the witnesses. PW8 the doctor, has
  categorically admitted in his evidence that the deceased must
  have died before 30 hours from the time of the post mortem
B examination. It means that no occurrence of the incident took
  place at 3.30 p.m. on 16.07.1996 as alleged by the prosecution
  and the deceased was dead before the alleged time of
  occurrence. Therefore, the medical evidence is not in conformity
  with the prosecution case rather it supports the defence version
c making the entire prosecution case false. In this regard he has
   placed strong reliance upon the proposition of law laid by this
  Court to the effect that once the time of death as claimed by
  the prosecution is drastically different from the one as per the
   medical evidence, the case of the prosecution becomes
   doubtful and the benefit of doubt must be given to the appellant.
0
   He has placed reliance upon the following decisions of this
   Court, namely, Thangavelu v. State of TN5, Moti v. State of
   U.P. 0, Kunju Mohd. v. State of Kera/a 7 , Virendra v. State of
  U.P. 8 and Baso Prasad v. State of Bihaf'J.

E      9. Therefore, the learned senior counsel submits that the
  concurrent finding of fact on the charge recorded by the High
  Court against this appellant is erroneous and vitiated in law
  which is liable to be set aside and he may be acquitted of the
  charges leveled against him and he may be set at liberty by
F allowing this appeal.

        10. On the other hand, Mr.Chandan Kumar, the learned
  counsel appearing on behalf of the State sought to justify the
  finding and reasons recorded in the impugned judgment, inter
G alia, contending that the High Court in exercise of its appellate
    5.    (2002) 6 sec 498.
    6.    (2003J 9 sec 444.
    7.    (2004) 9 sec 193.
    8.    (2008) 16 sec 582.
H   9.    (2006) 13 sec 65.
          UMESH SINGH v. STATE OF BIHAR                       813
              [V. GOPALA GOWDA, J.]
jurisdiction has examined the correctness of the findings and         A
reasons recorded by the learned Sessions Judge on the
charges framed against the appellant and on proper appraisal
of the same, it has affirmed the conviction and sentence
imposed against the appellant which is based on proper re-
appreciation of evidence on record. The same is supported             B
with valid and cogent reasons. Learned counsel further sought
to justify registration of FIR on the basis of the information
furnished by PW2 which is in conformity with the decision of
 this Court in Binay Kumar v. State of Bihar10 relevant paragraph
 of which reads as under:                                             c
     "9. But we do not find any error on the part of the police in
     not treating Ext. 10/3 as the first information statement for
     the purpose of preparing the FIR in this case. II is evidently
     a cryptic information and is hardly sufficient for discerning
     the commission of any cognizable offence therefrom.              D
     Under Section 154 of the Code the information must
     unmistakably relate to the commission of a cognizable
     offence and it shall be reduced to writing (if given orally)
      and shall be signed by its maker. The next requirement is
      that the substance thereof shall be entered in a book kept      E
      in the police station in such form as the State Government
      has prescribed. First information report (FIR) has to be
     prepared and it shall be forwarded to the magistrate who
     is empowered to take cognizance of such offence upon
     such report. The officer in charge of a police station is not    F
     obliged to prepare FIR on any nebulous information
     received from somebody who does not disclose any
     authentic knowledge about commission of the cognizable
     offence. It is open to the officer-in-charge to collect more
     information containing details about the occurrence, if          G
     available, so that he can consider whether a cognizable
     offence has been committed warranting investigation."

     11. Further, the correctness of the same is sought to be
10. (1997) 1 sec 283.                                                 H
    814       SUPREME COURT REPORTS                    [2013] 4 S.C.R.


A justified by placing reliance upon the 1.0.'s evidence. The
  counsel for the state has placed reliance upon the decision of
  this Court in Dinesh Kumar v. State of Rajasthan". The
  relevant paragraphs are extracted hereunder:

          "11. It is to be noted that PWs 7 and 13 were the injured
B
          witnesses and PW 10 was another eyewitness and was
          the informant. Law is fairly well settled that even if acquittal
          is recorded in respect of the co-accused on the ground
          that there were exaggerations and embellishments, yet
          conviction can be recorded if the evidence is found cogent,
c         credible and truthful in respect of another accused. The
          mere fact that the witnesses were related to the deceased
          cannot be a ground to discard their evidence.

          12. In law, testimony of an injured witness is given
D         importance. When the eyewitnesses are stated to be
          interested and inimically disposed towards the accused,
          it has to be noted that it would not be proper to conclude
          that they would shield the real culprit and rope in innocent
          persons. The truth or otherwise of the evidence has to be
E         weighed pragmatically. The court would be required to
          analyse the evidence of related witnesses and those
          witnesses who are inimically disposed towards the
          accused. But if after careful analysis and scrutiny of their
          evidence, the version given by the witnesses appears to
F         be clear, cogent and credible, there is no reason to
          discard the same. Conviction can be made on the basis
          of such evidence."

      12. The learned counsel further submits that the dispute
  regarding the place of incident as contended by the learned
G counsel for the appellant is factually not correct. In view of the
  concurrent finding of the High Court regarding the place of
  occurrence is very much certain as it is said to be at Tungi. PW4
  Ashok Kumar Singh in his evidence has categorically stated

H   11. c2ooa) a sec 210.
         UMESH SINGH v. STATE OF BIHAR                      815
             [V. GOPALA GOWDA, J.]
that he is not an eye-witness but on the basis of hearsay he       A
has informed the police. The 1.0. has further stated in his
evidence that PW4 is a hearsay witness and therefore his
information could not have been treated as FIR. Hence he has
requested this Court that there is no merit in this appeal,
particularly, having regard to the concurrent finding on the       B
charge by the High Court on proper appreciation of legal
evidence and record and affirming the conviction and sentence
for charge under Section 302 read with Section 34, IPC. Hence,
the learned senior counsel has requested this Court not to
interfere with the same in exercise of its jurisdiction.           c
     13. In the backdrop of the rival legal contentions urged on
behalf of the parties this Court has reasonably considered the
same to answer the point which is formulated above in this
judgment and answer the same against the appellant for the
following reasons.                                                 D

      14. PW2 Arvind Kumar, who is the cousin brother of the
deceased, accompanied him on the date of occurrence of the
 incident. At that point of time the appellant, along with other
 accused, surrounded them and it is stated that the appellant      E
shot at the Kanpatti with revolver and other accused persons
Binda Singh with the rifle in the stomach of the deceased and
Sudhir Singh with rifle in the left thigh. PW7 has stated in his
evidence that the aforesaid accused persons fled away at that
time Ashok Singh, Damodar Singh, Bairam Singh and Shyam            F
Sunder Singh were going to the bazaar who have witnessed
the incident. His evidence is supported by the evidence of the
other witness namely PW3, who has stated that he has seen
Moti Singh and Jaddu Singh catching both hands of the
deceased and Moti Singh ordered him to fire and the said           G
witness also spoken about the firings by Awadhesh Singh and
Nawal Singh as stated by the PW2. Further, he has supported
his evidence that Awadhesh Singh pushed the dead body in
the Payeen and also stated that Moti Singh and Jaddu Singh
had caught hold of the informant also. PW5 also claimed to
                                                                   H
    816     SUPREME COURT REPORTS                  [2013] 4 S.C.R.


A have seen Jaddu Singh and Moti Singh catching hands of the
  deceased and further he has stated that Umesh Singh, the
  appellant herein, had fired at the temple region of the
  deceased. Further, he has given categorical statement stating
  that Binda, Sudhir, Awadhesh and Nawal also had fired at the
s deceased with their rifles. Therefore, the evidence of PW2 has
  been supported by PW3, PW5 and PW?. In so far as PW6 is
  concerned he has given a general statement that he has seen
  the several persons surrounding the deceased and killing the
  deceased with rifle and revolver. Therefore, the trial court was
c right in recording the finding on the charge against the appellant
  on proper appraisal of the evidence of the eye-witness PW2
  supported by PW3 and PW5. The said finding of fact on the
  charge of Sections 302 read with section 34, IPC against this
  appellant and others was seriously examined by the High Court
  and concurred with the same and in view of the evidence of
0
  PW2 and PW9 the informant who was eye-witness and the 1.0.'s
  evidence regarding his evidence treating the statement of PW2
  as FIR is perfectly legal and valid. Therefore, reliance placed
   upon the decisions of this Court referred to supra by the learned
  Senior Counsel in the course of his submission are not tenable
E in law as they are misplaced.

       15. In so far as the medical evidence of the Doctor-PW8
  read with the post mortem report upon which strong reliance
  is placed by the learned senior counsel for the appellant that
F death must have taken place prior to 30 to 36 hours as opined
  by the doctor that means it relates back to the early hours of
  16.07.1996 but not at 3.30 p.m. as mentioned in the FIR. Once
  the time of death is drastically different from the one claimed
  by the prosecution its case is vitiated in law. In support of the
G above-said contention strong reliance placed upon the
  decisions of this Court on aforesaid cases are all misplaced
  as the same are contrary to the law laid down by this Court in
  Abdul Sayeed v. State of Madhya Pradesh 12 • The relevant
  paragraphs are extracted hereunder:
H 12. c2010) 10 sec 2s9.
     UMESH SINGH v. STATE OF BIHAR                     817
         [V. GOPALA GOWDA, J.]
"33. In State of Haryana v. Bhagirath it was held as           A
follows: (SCC p. 101, para 15)

       "15. The opinion given by a medical witness need
       not be the last word on the subject. Such an
       opinion shall be tested by the court. If the opinion    8
       is bereft of logic or objectivity, the court is not         •
       obliged to go by that opinion. After all opinion is
       what is formed in the mind of a person regarding a
       fact situation. If one doctor forms one opinion and
       another doctor forms a different opinion on the
       same facts it is open to the Judge to adopt the view    C
       which is more objective or probable. Similarly if the
       opinion given by one doctor is not consistent with
       probability the court has no liability to go by that
       opinion merely because it is said by the doctor. Of
       course, due weight must be given to opinions given      D
       by persons who are experts in the particular
       subject."

34. Drawing on Bhagirath case, this Court has held that
where the medical evidence is at variance with ocular          E
evidence,

"it has to be noted that it would be erroneous to accord
undue primacy to the hypothetical answers of medical
witnesses to exclude the eyewitnesses' account which had
                                                               F
to be tested independently and not treated as the 'variable'
keeping the medical evidence as the 'constant' ".

35. Where the eyewitnesses' account is found credible and
trustworthy, a medical opinion pointing to alternative
possibilities cannot be accepted as conclusive. The            G
eyewitnesses' account requires a careful independent
assessment and evaluation for its credibility, which should
not be adversely prejudged on the basis of any other
evidence, including medical evidence, as the sole
touchstone for the test of such credibility.                   H
    818      SUPREME COURT REPORTS                   [2013] 4 S.C.R.

A                "21 .... The evidence must be tested for its inherent
                 consistency and the inherent probability of the story;
                 consistency with the account of other witnesses
                 held to be creditworthy; consistency with the
                 undisputed facts, the 'credit' of the witnesses; their
B                performance in the witness box; their power of
                 observation, etc. Then the probative value of such
                 evidence becomes eligible to be put into the scales
                 for a cumulative evaluation."

          36. In Solanki Chimanbhai Ukabhai v. State of Gujarat
c         this Court observed: (SCC p. 180, para 13)

                 "13. Ordinarily, the value of medical evidence is
                 only corroborative. It proves that the injuries could
                 have been caused in the manner alleged and
D                nothing more. The use which the defence can make
                 of the medical evidence is to prove that the injuries
                 could not possibly have been caused in the manner
                 alleged and thereby discredit the eyewitnesses.
                 Unless, however the medical evidence in its turn
E                goes so far that it completely rules out all
                 possibilities whatsoever of injuries taking place in
                 the manner alleged by eyewitnesses, the testimony
                 of the eyewitnesses cannot be thrown out on the
                 ground of alleged inconsistency between it and the
F                medical evidence."

          39. Thus, the position of law in cases where there is a
          contradiction between medical evidence and ocular
          evidence can be crystallised to the effect that though the
          ocular testimony of a witness has greater evidentiary value
G         vis-a-vis medical evidence, when medical evidence
          makes the ocular testimony improbable, that becomes a
          relevant factor in the process of the evaluation of evidence.
          However, where the medical evidence goes so far that it
          completely rules out all possibility of the ocular evidence
H         being true, the ocular evidence may be disbelieved."
           UMESH SINGH v. STATE OF BIHAR                       819
               [V. GOPALA GOWDA, J.]
      16. The learned State counsel has rightly urged that if the      A
medical and ocular evidence is contrary then the ocular
evidence must prevail. This aspect of the matter has been
elaborately discussed and the principle is laid down by this
Court in the aforesaid decision. The findings and decision
recorded and rendered by the learned Additional Sessions               s
Judge after thorough discussion and on proper appreciation of
evidence on record held that the doctor has opined that rigor
mortis starts within 1 to 3 hours and vanishes after 36 hours.
The said opinion of the medical officer PW8 regarding complete
vanishing of rigor mortis from the dead body after 36 hours is         c
medically not correct and this may be lack of his knowledge
on the subject and he was liberal to the cross-examination by
the defence lawyer. Further the learned Additional Sessions
Judge has rightly referred to Medical Jurisprudence Digest
written by B.L. Bansal Advocate, (1996 Edition at page 422),           D
which clearly mentions that the rigor mortis persists from 12 to
24 hours and then passes off but it means that the faster the
rigor mortis appears, the shorter time it persists. Further, rightly
the learned Additional Sessions Judge has referred to the case
decided by this Court in Boo/in Hulder v. State13 wherein it has       E
been held that at the same climate of India, rigor mortis may
commence in an hour to two and begin to disappear within 18
to 24 hours. Therefore, the learned Additional Sessions Judge
has held that broadly speaking the faster the rigor mortis
appears, the shorter the time it persists and further has rightly
made observation that rigor mortis will be present in some parts       F
of legs of the dead body. According to the medical officer PW8
there is no question of the time of death of the deceased. It must
have preceded more than 24 hours which is the maximum limit
for disappearance of rigor mortis. The said view of the medical
officer PW8 was found fault with by the learned Additional             G
Sessions Judge and held that he has not correctly deposed in
his cross-examination regarding the time lapse of a dead
person. He has extended the time for rigor mortis to be 30 to

13. 1996 Cr\. L.J. 513.                                                H
    820      SUPREME COURT REPORTS                 [2013] 4 S.C.R.


A 36 hours and further rightly held that PW8 the medical officer,
  has deposed in his evidence contrary to the rule of medical
  jurisprudence. Therefore, the learned Additional Session Judge
  has rightly held in the impugned judgment the same cannot be
  the basis for the defence to acquit the accused. The claim by
B the appellant that the deceased has been killed in the early
  morning of 16.07.1996 and the allegation that the accused has
  been falsely implicated in the case has been rightly rejected
   by the learned Additional Sessions Judge and the same has
   been concurred with by the High Court by assigning the valid
c  and cogent reasons in the impugned judgment. Rightly, the
   learned counsel appearing on behalf of the State has placed
   reliance upon the judgment of this Court referred to supra that
   between medical and ocular evidence the ocular evidence must
   be preferred to hold the charge proved. This is the correct legal
   position as held by both the learned Additional Sessions Judge
0
   as well as the High Court after placing reliance upon the
   statement of evidence of PW2, PW3, PW5 and PW7.
   Therefore, we do not find any erroneous reasoning on this
   aspect of the matter. There is no substance in submissions of
   the learned senior counsel on the above aspect of the matter
E with reference to judgments of this Court referred to supra which
   decisions have absolutely no application to the facts situation
   of the case on hand.

       17. In view of the concurrent findings by the High Court as
F well as the learned Additional Sessions Judge and an order
  of conviction and sentence imposed against the appellant
  herein is on the basis of legal evidence on record and on
  proper appreciation of the same. Therefore, the same is not
  erroneous in law as the finding is supported with valid and
G cogent reasons. For the foregoing reasons the impugned
  judgment and order cannot be interfered with by this Court.
  Hence, the appeal is devoid of merit and accordingly it is
  dismissed.

    B.8.8.                                      Appeal dismissed.
H