RAM NARESHversusSTATE OF U.P.

                  [2010] 11 S.C.R. 433


                        RAM NARESH                                 A
                               v.
                       STATE OF U.P.
             (Criminal Appeal No. 231 of 2004)
                    SEPTEMBER 9, 2010
                                                                   B
   [HARJIT SINGH BEDI AND CHANDRAMAULI KR.
                  PRASAD, JJ.]

    Penal Code, 1860:
                                                                   c
     s. 307 - Attempt to murder - Accused shot at the victim
- Conviction and sentence .of five years RI - Pleas of delay
in lodging the FIR and related witnesses - Rejected - HELD:
There is no substantial delay in lodging the FIR - Incident
happened late in the evening in a village about 9 km away          0
from the police station and it would have been difficult for the
complainant living in a backward area to rush to the police
station immediately - There is also no reason to disregard
the evidence of PWs - It must also be borne in mind that the
incident happened in the year 1978 and the evidence was            E
recorded i[I the year 1986 - Some discrepancies are,
therefore, bound to appear in the ocular evidence as memory
fades with the passage of time - Though the doctor has
deposed that from a look at the injury it could not be said with
certainty that it was a fire arm injury, in the light of ocular
evidence, howe:ter, the opinion of the doctor cannot stand in      F
the way of the prosecution - However, keeping in view the fact
that the incident had happened 32 years ago, the sentence
is reduced from five years to three years - Delay in lodging
FIR - Evidence - Variance in medical evidence and oral
testimony - Sentence/Sentencing.                                   G

    CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 231 of 2004.

                             433                                   H
    434      SUPREME COURT REPORTS                 [2010] 11 S.C.R.


A       From the Judgment & Order dated 19.11.2002 of the High
    Gour of Allahabad, Lucknow Bench Lucknow in Criminal
    Appeal No. 529 of 1989.

       Anurag Kishore, Somna Dhown and Vishwajit Singh for
B the Appellant.

       Sandeep Singh. G.V. Rao, lrshad Ahmad, Abhishek
    Choudhury and Manoj Kumar Dwivedi for the Respondent.

          The following Order of the Court was delivered
c                               ORDER

       1. This appeal is directed against the judgment and order
  of the High Court of Judicature at Allahabad whereby the
  appellant stands convicted for an offence punishable under
D Section 307 of the Indian Penal Code and sentenced to
  rigorous imprisonment for five years.

          2. The facts of the case are as under:

       2.1On11th August, 1978, as Ram Vilas PW 1, and his
E brother Shiv Vilas were returning home after visiting the temple
  about half a kilometre away from the village, they were waylaid
  by the appellant Ram Naresh and his father Jagannath (since
  expired). Jagannath was carrying a country made revolver
  whereas the appellant was armed with a single barrel shot gun.
F Jaganath exhorted the appellant that as Shiv Vilas was always
  coming in their way he should be killed. The appellant
  thereupon fired one shot at Ram Vilas which hit him on the
  head. The firing also attracted P.Ws2 and 3 to the spot. The
  next morning Ram Vilas along with the injured Shiv Vilas went
G to Police Station, Makhi and a First Information Report was
  lodged for an offence punishale under Sections 307/34 IPC.
  On the completion of the investigation the accused were
  charged for the above offences. The trial court and the High
  Court have relied on the evidence of Ram Vilas P.W. 1 and
H
            RAM NARESH v. STATE OF U.P.                        435

  Lalu P.W. 3 as eye witnesses of the occurrence, Shiv Vilas, in       A
. the meanwhile, having been murdered in some other incident.

      3. Before the trial court as well the High Court, the primary
argument made on behalf of the accused was that there was
an inordinate and unexplained delay in the lodging of the FIR,         B
that the evidence of the eye witnesses who were closely related
to the injured was discrepant in material particulars, and that
the medical evidence did not support the ocular evidence.
These submissions have been rejected by both the courts
below. Before us, today, Mr. Anurag Kishore, the learned               C
counsel for the appellant has reiterated the same arguments.
We find from a reading of the evidence that there is no
substantial delay in the lodging of the FIR. The incident
happened in a village about 9 kms. away from the police station
late in the evening and it would have been difficult for the
complainant living in rustic and backward area to rush to the          D
police station immediately. We also find no reason to disregard
the evidence of Ram Vilas and Lalu, PWs. Admittedly, Ram
Vilas was a brother of Shiv Vilas, the injured and Lalu was a
close relative and also a party man. It must also be borne in
mind that the incident happened in the year 1978 and the               E
evidence was recorded in the year 1986. Some discrepancies
are therefore bound to appear in the ocular evidence as
memory fades with the passage of time.

     4. We have also gone through the evidence of Dr. J.N.             F
Bajpai, P.W. 5. He deposed that from a look at the injury
caused to Shiv Vilas it could not be said with certainity that it
was a fire arm injury. In the light of the ocular evidence, however,
we find that the opinion of the doctor can in no way stand in
the way of the prosecution. Mr. Kishore has also attempted to          G
argue that as the shot had been fired at Shiv Vilas from a
distance of four feet the entry wound would have blackening and
charring thereon. It is true that had the shot gun been fired from
that distance, blackening and charring would have been visible
but the four steps (kadams) that have been referred to by Mr.
                                                                       H
    436     SUPREME COURT REPORTS               [2010] 11 S.C.R.


A   Kishore is not four feet but about 40 feet as a kadam CRL.A.
    No. 231 of 2004 5 REPORTABLE would be about four to five
    feet. In this view of the matter, the fact that there was no
    blackening or charring around the wound does not in any
    manner help the defence.
B
       5. It has been finally submitted by Mr. Kishore that as the
  incident had happened in the year 1978 and as 32 years had
  passed on some reduction in the sentence may be considered.
  We find merit in this plea. We, accordingly, reduce the sentence
C of the appellant from five to three years.

        6. With this modification in the sentence, the appeal is
    dismissed.

         7. Appellant be taken into custody forthwith to serve out
    the remaining period of his sentence.

    R.P.                                      Appeal dismissed.