BASO PRASAD AND ORS. v. STATE OF BIHAR

HELD: 1.1. Whereas 'B' alone fired a shot which had hit the deceased,_ there is no evidence brought on record to show that any other accused did so. No gun shot injury was suffered by any person. The deceased has also suffered E only one gun shot injury. No sign of firing was found on the walls or any other part of the building. No cartridge was recovered. Even no other person had suffered any injury by reason of hurling of brick bats. Having regard to the materials brought on records, in this case although the prosecution has proved the charge of committing the murder of the deceased, it has failed to F establish that the accused had any common intention in relation thereto. 'B' alone was, thus, responsible therefor. Had the other accused shared common intention they would have also fired. No such evidence having been brought on record, benefit of doubt must be extended to the other accused persons. (449-C-G) 1.2. Although the investigation was conducted in a slipshod manner, but G the presence of blood at the spot of occurrence as also seizure thereof had categorically been stated by PW-4, PW-5, PW-6, PW-7, PW-8 and PW-2. It is, thus, not correct to say that no blood was found at the spot. (438-C-D]

1.3. In the First Information Report, it was categorically stated that the appellants had indulged in brick batting. The statement to the said effect was proved by PW~4, PW-5, PW-6, PW-7, PW-8 and other eye-witnesses in their H BASOPRASADv. STATEOFBIHAR 433 depositions before the court. There had been firing from the side of the A appellants has not only been disclosed in the First Information Report but also stated by the witnesses. [438-F-HI

2.1. It cannot be said that in view of the medical opinion with regard to presence of rigour mortis in the four limbs of the deceased time of death as claimed by the prosecution is doubtful. The exact time of death cannot be B established scientifically and precisely, only because of presence of rigour mortis or in the absence of it. The incident took place in the winter season. The deceased was aged about 50 years. Rigour mortis, thus, would be well marked. Rigour mortis, appears after two to three hours. It is well developed from head to foot in about 12 hours. The age, muscular condition and activity C before death, manner of death and atmospheric conditions are relevant factors. [439-D; 442-A-B; 443-D-E I Mangu Khan and Ors. v. State of Rajasthan, [20051 10 SCC 374 and Thangavelu v. State ofT.N, [200216 SCC 498, referred to. 'Modi's Textbook of Medical Jurisprudence and Toxicoio"gy',2 I st Edn., D at page I 7 I; Parikh's Textbook of Medical Jurisprudence, Forensic Medicine and Toxicology' 6th Edn., at page 3.14, referred to.

2.2. It cannot be said that medical evidence is inconsistent with the ocular evidence as in view of the nature of injury, firing must have taken place from E a close distance. It is true, ordinarily, charring would take place, if firing is done from a distance of less than four feet. But in the present case, whereas in the body of the post-mortem report, the medical expert stated, 'the margin of wound charred and inverted' at another point, he in no uncertain terms stated that firing was done from long range and distance of firing would be from more than six feet. The possibility, therefore, of his commission of F some mistake in the post-mortem report cannot be ruled out. It was on the said premise, it was incumbent upon the defence to bring the said fact to the notice of the doctor. Probably, knowing the futility of asking such a question, no such contention was raised either before the Sessions Judge or before the High Court. No such ground has also been taken before this Court. G (443-D-G) Subhash and Anr. v. State of U.P., [1976) 3 SCC 629; Nath Singh and Ors. etc. v. State ofU.P., [198014 SCC 402; State of Punjab v. Wassan Singh and Ors., (1981) 2 SC 1 and Sidharth and Ors. v. State of Bihar, [2005) 12 sec 545, referred to. H 434 SUPREME COURT REPORTS [2006] SUPP. 9 S.C.R. A

2.3. It 'is axiomatic, however, that when some discrepancies are found in the ocular evidence vis-a-vis medical evidence, the defence should seek for an explanation from the doctor. He should be confronted with the charge that he has committed a mistake. Instances are not unknown where the doctor has rectified the mistake committed by him while writing the post-mortem B report. (443-G-H; 444-A]