IMPORTANT POINT
It is now well settled that the lapse of time since death, cannot be accurately stated. A defective investigation by itself cannot be a ground for acquittal.

Headnote:Indian Penal Code, 1860 – Section 302 – The prosecution case in our opinion stands proved from the evidence of the first informant and PW. 2 – The manner in which the occurrence had taken place is clearly corroborated by the medical evidence, the correctness whereof is not in question – As regards lapse of time since death, it is now well settled that the same cannot be accurately stated – First Information Report was lodged at the quickest possible time and essential material facts were disclosed therein – Only because P.W. 8 in his evidence did not state that the recovered empty cartridge was sealed at the spot, the same would not mean that it was planted later on, particularly when recovery of the gun and the report of the expert has not been disputed – The very fact that the FIR was recorded almost immediately after taking place of the occurrence, the question of its being an ante timed one would not arise – A defective investigation by itself cannot be a ground for acquittal – There being no ground to differ from the concurrent findings of the trial and the High Court, appeal dismissed. (Paras 11, 12, 14, 20 to 23 and 26).
       AIR 2007 SC 132; AIR 2006 SC 1656; 2006 (8) SCALE 440; 2006(12) SCALE 354; (1994) 5 SCC 188 – Relied upon.
       (2002) 9 SCC 408; AIR 2004 SC 1169 – Distinguished
       Facts of the case :
       The occurrence took place at Village Jonhar at about 4’o clock in the evening of 31.7.1989 near a well belonging to one Dangal Singh Yadav where the deceased Durg Singh went to take bath. First Informant was also going there to take his bath. When he was at a little distance from the said well, he found the deceased taking bath. Appellant came with a 12 bore double barrelled gun. Kalyan Singh and Ashok Yadav were also armed with guns. Kalyan Singh, Ashok Yadav and Gulab Singh surrounded the well. At the exhortation of Kalyan Singh, appellant fired a shot from his 12 bore double barrel gun on the deceased. Munnalal Yadav had also come therewith his cattle. Complainant Gyansingh and Munnalal shouted whereupon Ashok and Gulab fired on them. They, however, lay down on the ground. Other villagers came to the spot immediately thereafter. The dead body of Durg Singh was brought to Baroni Police Station at about 5.45 in the evening. The accused having been arrested, the guns, in question, at their instance, were recovered. The bullets as also the guns were sent to a ballistic expert. The bullet, in question, was found to have fired from the gun belonging to the appellant.
       The learned Trial Judge convicted the appellant but acquitted the others.
       Findings of the Court :
       Prosecution has successfully proved its case; there is no infirmity in the findings of the trial court and the High Court. No interference is required.

JUDGMENT

S.B. SINHA, J.—

1.Leave granted.

2.Appellant was accused No.1 before the trial Court. He alongwith three others namely Gulab Singh, Ashok Yadav and Kalyan Singh were tried for commission of offences under Section 302/34 and 307/34 of Indian Penal Code. The occurrence took place at Village Jonhar at about 4’o clock in the evening of 31.7.1989 near a well belonging to one Dangal Singh Yadav. The first informant was the brother of the deceased Durg Singh.

3.In the First Information Report, it was alleged that the deceased went to take bath. First Informant was also going there to take his bath. When he was at a little distance from the said well, he found him taking bath. Appellant came with a 12 bore double barrelled gun. Kalyan Singh and Ashok Yadav were also armed with guns. Kalyan Singh, Ashok Yadav and Gulab Singh surrounded the well. At the exhortation of Kalyan Singh, appellant fired a shot from his 12 bore double barrel gun on the deceased. Munnalal Yadav had also come therewith his cattle. Complainant Gyansingh and Munnalal shouted whereupon Ashok and Gulab fired on them. They, however, lay down on the ground. Other villagers came to the spot immediately thereafter. The dead body of Durgsingh was brought to Baroni Police Station at about 5.45 in the evening. P.W. 8, Virendra Singh was the head constable attached to the said Police Station. The Station House Officer was absent. On the oral report made by the first informant Gyansingh, he recorded the First Information Report. P.W. 11, Pramal Singh was in charge of Sonagir Chouki. He had come to the police station for some administrative works. As the S.H.O. had gone out of the police station and the head constable was in-charge thereof, the First Information Report was given to him. At his instance, P.W. 8 made an inquest of the dead body. It was sent for post-mortem. The dead body was received at the hospital by Dr. A.K. Sharma at about 7.55 p.m. on the same day. Post mortem examination, however, was carried out at 10.30 on the next day. The said Dr. A.K. Sharma examined himself as P.W.16.

4.In his post-mortem report, it was opined that the death of Durg Singh occurred due to a gun shot, hemorrhage and rupture of both the lungs. Duration of death was said to be within 36 hours. A bullet which was marked as Art C was found in the body of the deceased. It was sealed and handed over to the constable concerned.

5.The bullet was found to have ruptured the lung and thereafter hit the ribs, as a result whereof, ribs had broken down. It had ruptured the other lung also.

6.The accused having been arrested, the guns, in question, at their instance, were recovered. The bullets as also the guns were sent to a ballistic expert. The bullet, in question, was found to have fired from the gun belonging to the appellant. Before the learned trial Judge, Gyansingh examined himself as P.W. 1. Munnalal also deposed as P.W. 2 before the learned Trial Judge. The accused were also seen running away from the spot by Sughar Singh, P.W. 5.

7.The learned Trial Judge convicted the appellant but acquitted the others. Against such judgment and order of acquittal, the State, however preferred an appeal before the High Court only against the judgment of acquittal acquitting Kalyan Singh. No appeal was filed against judgment of acquittal passed in favour of Babulal and Dashrath Singh.

8.The High Court by reason of the impugned judgment not only upheld the judgment of conviction passed against the appellant by the learned Trial Judge but also set aside the judgment of acquittal of the learned Sessions Judge in favour of the said Kalyan Singh. This Court, however, found the approach of the High Court in reversing the judgment of acquittal passed against Kalyan Singh not in accordance with law. His Special Leave Petition has been allowed by this Court by an Order dated 21.11.2006.

9.Mr. T.N. Singh, learned senior counsel appearing on behalf of the appellant would submit:

(i)The First Information Report is

Click Here to Read the rest of this document

2007 Supreme(SC) 826

IMPORTANT POINTIt is now well settled that the lapse of time since death, cannot be accurately stated. A defective investigation by itself cannot be a ground for acquittal.

Cases Referred (6)

IMPORTANT POINT
It is now well settled that the lapse of time since death, cannot be accurately stated. A defective investigation by itself cannot be a ground for acquittal.