IMPORTANT POINTS
(i) It is well settled that doctors before, whom dead bodies are produced or injured persons are brought, either themselves take the dying declaration or hold the port-mortem immediately and if they start examining the informants they are likely to become witnesses of the occurrence which is not permissible.
(ii) Medical evidence is not yet so perfect as to determine the exact time of death nor can the same be determined in a computerised or mathematical fashion so as to be accurate to the last second.

JUDGMENT

S.M. Fazal Ali, J. - This appeal under section 379 of the Code of Criminal Procedure, 1973 is directed against a judgment dated April 4, 1977 of the Andhra Pradesh High Court which reversed the order of acquittal passed by the trial court and convicted the appellant under section 302 I.P.C. and sentenced him to imprisonment for life.

2. The facts of the case have been detailed in the judgments of the High Court and the trial court and need not be repeated all over again. The main evidence consists of P.Ws. 1 and 2 who were the eye-witnesses to the assault and had proved that the deceased died as a result of the injuries inflicted upon him by accused. The trial court as also the High Court disbelieved P.Ws. 6 to 9 and, therefore, it is not necessary for us to refer to their evidence. The main witnesses P.Ws. 1 and 2 were examined on the very day of inquest and their statement carries great value.

3. Mr. R. K. Garg, learned senior counsel for the appellant, submitted that the High Court was not at all justified in reversing the judgment of the trial court in the absence of any clear error of law and more particularly because the view taken by the trial court was "reasonably possible".

4. There is no dispute with respect to the above proposition but the sheet-anchor and the fundamental core of the argument of Mr. Garg was that the F .1.R. was full of infirmities which intrinsically went to show that it was fabricated by the Investigating Officer after the death of the deceased. It was further urged by Mr. Garg that if the F.I.R. fails and is held to be a spurious document then the entire edifice of the prosecution case would fall to the ground. We agree that so far as the proposition of law stated by the learned counsel is concerned, there can be no quarrel with the same.

5. The question for determination, however, is whether the defence had proved that the F.I.R. was really a false and fabricated document. We have ourselves gone through the long and detailed F.I.R. but we are unable to find any serious infirmity in the same because, according to the prosecution, the F.I.R. was recorded by the Investigating Officer (P.W. 23) as narrated to him by P.W. 1. To begin with, therefore, we are unable to agree with the learned counsel for the appellant that we should start with a presumption that the F.I.R. was false or fabricated.

6. The circumstances relied upon by the counsel for the appellant may be narrated as follows:-

The F.I.R. was belated and does not appear to have been made at the time when it was purported to be made. This is, according to the counsel, supported by the fact that there was sufficient delay in despatching the F.I.R. to the Magistrate. Taking a very meticulous view of the time lag between the lodging of the F.I.R. and the time of death of the deceased, as proved by the Doctor, the argument was that at the time when the F.I.R. was lodged there could be no question of P.W. 1 having made the statement before the I.O. (P.W. 23).

7. We might state that the argument in this form was not addressed to the High Court which was the first court of appeal. Stress was only laid by the defence counsel on the time when the F.I.R. was given and it was contended that there was unexplained delay which was fatal to the prosecution case. In these circumstances, the very basis of the most important point stressed before us by Mr. Garg does not appear to have been raised before the High Court.

8. Secondly, regarding the question of delay in the F.I.R. being sent to the Magistrate that also does not appear to be very vital. It is well-known that when a murderous assault of this nature takes place in broad-day light, the first anxiety of the nearest ones of the 'victim would be to take him to the nearest hospital to get him medical aid to save his life. In the instant case, as the F.I.R. was lodged at about 1.00 p.m. on 2.7.75, after the occurrence took place at 9.30 a.m. and the victim had died by 10.55 a.m., it cannot be sai