IMPORTANT POINT
When the direct testimony of the eye witnesses corroborated by the medical evidence fully establishes the prosecution version, failure or omission or negligence on the part of the Investigation Officer cannot affect credibility of the prosecution version.

JUDGMENT

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 sentenced to undergo imprisonment for life. However, co-accused Rajendra Singh was acquitted.

2. Background facts which led to trial are as follows:

Complainant-Ram Singh (PW-1) at the time of occurrence was living at village Swasa. On 20.7.82 at about 6.00 p.m. when he was returning to his village Pyare Singh (PW-2), a co-villager was also with him. On the way his brother Prem Singh (hereinafter referred to as the deceased ) who was living at village Chhani met him. They came to the bus stop and sat at the Chabutra in front of the Dak Bungalow and waited for the bus. At that time a bus came from Hamirpur. Appellant-Rambali Singh (A-1) and Rajendra Singh (A-2) residents of village Chhani Bujurg got down from that bus.

3. Accused Rambali had a double barrel gun in his hand and a single barrel gun was in the hands of the acquitted accused Rajendra Singh. After that they went to a nearby betel shop. From there they came and stood in front of them and said to his brother, the deceased "Dishonest: should we kill you". At that time Rambali fired from his double barrel gun and killed the deceased who died at the spot. The complainant and others raised alarm and the accused ran away towards the village hospital. There was enmity between the family members of the complainant and accused Rambali Singh due to litigations and for that reason the accused persons had assassinated the deceased-Prem Singh. Many villagers were present there at the time of occurrence. The occurrence report was drafted by Ram Kishan Gupta under the instruction of complainant, registered as FIR and is Exhibit Ka-1. After FIR was lodged, investigation was undertaken.

4. On completion of investigation charge-sheet was placed and matter was taken up for trial after framing charges. Six witnesses were examined to further the prosecution case. Out of six witnesses examined, PWs 1 and 2 were stated to be the eye-witnesses to the occurrence. The accused who pleaded innocence did not examine any witness. They took the plea that the complainant was not present at the site of the occurrence as alleged to have happened. One Ram Kishan Gupta had called him from his village Swasa on motorcycle. The Trial Court accepted the version of PWs 1 and 2 as a correct reflection of what had happened and placing reliance on their evidence directed conviction. But, as noted above, co-accused Rajendra was acquitted by the High Court.

5. In support of the appeal, learned counsel for the accused-appellant submitted that the High Court has not elaborately analysed the evidence and has cryptically disposed of the appeal. Medical evidence was clearly at variance with the ocular evidence and, therefore, both the Trial Court and the High Court had fallen into grave error by placing reliance on the evidence of PWs 1 and 2. Though the accused allegedly used a gun, it was not sent for forensic testing. Evidence on record establishes that the village was a dacoit infested, for which police patrolling just before the alleged incident took place. A Constable (PW-5) had gone to the village, but nobody reported anything to him. PW-2 had stated that the deceased had taken lunch at about 2.00 p.m. When the doctor conducted post-mortem he found that the stomach was empty. With reference to the textbook "Medical Jurisprudence and Toxicology" by HWV Cox, it was pointed out that at least six hours are needed for the food to get completely digested. Medical evidence, therefore, probabilises the defence version that some incident took place around 9.00 p.m. Though the distance of the alleged place of occurrence from the police station is about 8 Kms., FIR was lodged at the Binwar police station around 9.30 p.m. It has been