REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL  APPEAL NO. 319 OF 2008

Subhash Chandra & Ors.                                       …. Appellants

Versus

State of U.P.                                            …. Respondent

With

CRIMINAL  APPEAL NO. 1086    OF 2009 (Arising out of SLP (Crl.) No. 7304 of 2008)

JUDGMENT

Dr. MUKUNDAKAM SHARMA, J.

1. Leave granted.

2. These appeals, which are being disposed of by this Judgment  

were filed by the appellants herein against the Judgment and Order  

dated 13th July,  2007 passed by the High Court  of  Judicature at  

Allahabad in Criminal Appeal No. 883 of 1991.   

3. The appellants herein being aggrieved by the Judgment and  

Order dated 25th April, 1991 passed by First Additional District and  

Sessions Judge, Jaunpur had approached the High Court.  The First  

Additional District and Sessions Judge, Jaunpur in S.T. No. 125 of  

1985 convicted the appellants under sections 302 read with section

149 of the Indian Penal Code (in short “the IPC”) and sentenced  

them to undergo imprisonment for life, under section 324 read with  

section  149  IPC and sentenced  to  undergo  one  and  a  half  year  

rigorous  imprisonment  (R.I.);  and  under  section  323  read  with  

section 149 IPC, to undergo one year’s R.I.  The appellants Thakur  

Din, Sarju, Subhash Chandra, Sri Ram, Kedar Yadav, Hari alias Hari  

Ram Yadav and Ramesh Chandra have been further convicted under  

section  147  IPC  and  sentenced  to  undergo  one  year’s  R.I.  and  

appellants Babu Ram and Sabhu alias Sahab din have been further  

convicted under Section 148 IPC and sentenced to undergo R.I. for  

one and a half years.  It was ordered that all the sentences would  

run concurrently.   

4. The  aforesaid  Sessions  Case  arose  out  of  an  occurrence,  

which took place on 22.08.1984 at about 9 p.m. in the field situated  

at the outskirts of village Junedpur.  The said place is said to be  

located  at  a  distance  of  about  3  miles  from the  Police  Station,  

Sarpatha in the Jaunpur District.  The First Information Report of  

the incident was recorded on the basis of a written report submitted  

by Jai Narain Yadav, son of Sahab Din alias Dahpel Yadav, resident  

of  village  –Junedpur,  which  comes  under  the  Sarpatha  Police  

Station, Jaunpur.  The said FIR was lodged on 23.08.1984 at 2.30  

a.m.    In the said First Information Report, the informant alleged  

Page 2 of 13

that on 22.08.1984 the informant, his father Sahbu alias Dehpel,  

his ‘Chacha’ Phool Chand and Shiv Shankar Tiwari from his village  

went to the field for irrigating the wheat crop.  The father of the  

complainant  was  watering  the  field  and  the  complainant,  his  

‘Chacha’ Phool Chand and Shiv Shankar Tiwari were sitting on the  

‘mendh’ of the field and were examining the flow of the water in the  

field.  At about 9 p.m., the accused persons, Sahbu @ Sahabdeen  

son of Jadgev, Subhash Chandra son of Jagdev, Baburam, Kedar,  

Ramesh Chandra and Hari  son of Sahabdeen, Thakurdeen son of  

Jagdev,  Subhash  Chandra,  Sarju,  Shriram  son  of  Thakurdeen,  

Baldev son of Alagu, Shiv Kumar, Ram Kumar son of Shubh Karan  

armed with lathi and ballam came there.  The complainant and Shiv  

Shankar, sitting on the mendh, switched on their torch.  Thereafter,  

the  accused  gave  a  ‘lalkara’  and  started  assaulting  the  persons  

sitting on the Mendh and started saying that today these persons  

should be killed in order to solve their problem.  The father of the  

complainant, who was watering the field, switched on his torch and  

ran away.  Persons near the field also arrived there. Shiv Shankar  

Tiwari, the complainant and Phool Chand Tiwari sustained injuries.  

The accused – Sahabdeen and Baburam were armed with ballam  

and the rest of the persons were armed with lathis.   

Page 3 of 13

5. On the basis of the written report received, a criminal case  

was  registered  under  sections  147,  148,  149,  307  and  323  IPC  

against  the  accused  persons  on  23.08.1984.   The  injured  were  

taken for medical treatment to the Primary Health Center, Suetha  

Kalan  by  the  police,  where,  on  23.08.1984  at  night,  they  were  

medically  examined.   However,  Phool  Chand  Tiwari  immediately  

died at the Primary Health Center itself.  On receipt of the aforesaid  

report, the criminal case, which was registered earlier under Section  

307  IPC  was  converted  to  a  case  under  Section  302  IPC.   The  

investigating officer thereafter started investigation into the matter  

and  took  the  accused  –  Sarjoo  Yadav  into  custody.   He  also  

conducted inquest on the dead body.  The doctor was requested to  

conduct post-mortem examination upon which he conducted such  

examination and found as many as 18 anti-mortem injuries on the  

body of  the deceased.   So far  as two other injured persons are  

concerned,  their  medical  reports  were also  prepared.  The doctor  

opined that the death of the deceased was caused due to shock and  

haemorrhage as a result of anti mortem injuries specifically injury  

nos. 6, 15 and 18.   

6. The investigating officer after recording the statements of the  

witnesses and collecting the evidence completed his investigation  

and submitted the charge sheet.   

Page 4 of 13

7. The trial court framed charges against the accused to which  

the accused persons pleaded not guilty.  Consequently, witnesses  

were examined on behalf of the prosecution.  

8.  The accused persons were examined under Section 313 of  

the  Criminal  Procedure  Code  and  all  of  them  in  the  course  of  

recording  of  their  statements  denied  having  participated  in  the  

crime and stated that they have been falsely implicated in the case.  

Sarjoo Yadav – accused alleged that he was also injured during the  

scuffle,  which  took  place  on  22.08.1984  and  he  produced  the  

medical examination report which was given by the medical officer  

of the Primary Health Center where he found the following injuries  

on his body:

1. Lacerated wound 5 cm x .4cm, skin deep,  bluish red in  colour with zig zag margin, 11.5 cm above the tragus of  right ear.

2. Contusion 7cm x .5 cm on right shoulder lateral aspect,  bleeding per right ear.

9. The aforesaid injuries were simple in nature and caused by  

blunt object about 12 hours in duration.  The trial court concluded  

the trial and after hearing both parties passed an order of conviction  

against the appellants holding them guilty of the charges framed  

against them.  The trial court passed an order of sentence as stated  

hereinbefore.

Page 5 of 13

10. Being  aggrieved  by  the  aforesaid  Judgment  and  Order  of  

conviction and sentence, the appellants filed appeal before the High  

Court of Allahabad.  The High Court by the impugned Judgment and  

Order  dated  13.07.2007 affirmed the  order  of  conviction  passed  

against the accused persons by the trial court.

11. Mr.  S.C.  Maheshwari  and  Mr.  R.K.  Shukla,  learned  senior  

counsel, appearing for the appellants placed several issues before  

us.  They submitted that there are major contradictions between  

the  statements  made  in  the  First  Information  Report  and  the  

statements of the witnesses, particularly, with regard to nature of  

the  incident.   They  also  highlighted  such  contradictions  in  the  

statements of witnesses’ vis-à-vis, injury report and submitted that  

the aforesaid contradictions are being very vital and major and no  

order  of  conviction  could  have  been  passed  against  accused  –  

appellants  on the basis  of  such contradictory  statements.  It  was  

also submitted by them that all the injuries were caused by blunt  

weapon in the course of brawl and that there was no intention to  

cause death, and therefore, conviction under Section 302 IPC was  

excessive.  It was also submitted that there was no motive of any of  

the accused persons to commit the crime, which is also clear on a  

reading and analysis of the evidence of PWs 1 and 2, and therefore,  

there  is  total  non-application  of  mind  in  passing  the  order  of  

Page 6 of 13

conviction against the accused/appellants.  They also submitted that  

the injuries received by PWs 1 and 2 are only superficial injuries,  

which are almost  similar  to one received by one of  the accused  

persons, and therefore, no conviction under Section 302 IPC was  

called for.   

12. In  order  to  appreciate  the  contentions  of  the  counsel  

appearing for the appellants we have scrutinized the evidence on  

record.  The occurrence took place on 22.08.1984 at about 9 p.m.  

The place of occurrence is admittedly the agricultural  land of the  

complainant  party.   During  the  course  of  the  aforesaid  incident  

Phool Chand Tiwari received grievous injuries whereas PWs 1 and 2  

also  injured  when  the  accused  persons,  who  were  armed  with  

ballam and lathis, attacked them.  The Police Station is located at a  

distance  of  about  3  miles  from  the  place  of  occurrence,  and  

therefore, a report of the incident at about 2.30 a.m. must be held  

to  be  prompt  and  without  delay.   After  recording  the  First  

Information Report on the basis of the statement of the informant  

all  the  injured  persons  were  sent  to  the  Primary  Health  Center  

wherein a doctor examined them and following injuries were found  

in their bodies:

13. On the body of injured Jainarain, PW 1, following injuries was  

found:

Page 7 of 13

1. 4 cm swelling just above the right elbow.   

14. On the body of injured Shiv Shankar Tiwari, PW 2, following  

injuries were found:

1. Lacerated wound 3.5 cm x 5 cm x  skin deep, red colour,  on the head, near the right ear – 1 cm away.

2. Abrasion 1.3 cm x 0.5 cm on the right shoulder.

3. Contusion 5 x 4 cm on the left elbow.

4. Contusion 2 x 2 cm on the left sacroiliac joint c/o pain in  left knee.

15. On the body of accused – Sarakpp Yadav, son of Thakur Deen  

Yadav, following injuries were found:

1. Lacerated wound 5cm x .4cm x skin deep bluish red in  colour with zig zag margin 11.5 cm above the tragus of  right ear.

2. Contusion  7  x  .5cm  on  right  shoulder  lateral  aspect  bleeding per right ear.

16. Immediately thereafter Phool Chand Tiwari died and his post  

mortem  examination  was  conducted  on  24.08.1984  by  Dr.  R.K.  

Singh,  Senior  Medical  Officer,  Sri  Keshav Prasad Gupta Hospital,  

Varanasi.  In the aforesaid post mortem examination on the body of  

deceased Phool Chand Tiwari, following injuries were found:

1. Lacerated wound 8 cm x .5 cm x scalp and bone of skull on  the  top  of  the  left  side  of  the  head,  11  cm above  the  (illegible).

Page 8 of 13

2. Lacerated wound 1.5 cm x .5 cm x scalp on the top of the  posterior aspect of the head, 12 cm above and backward  from the right ear.

3. Lacerated wound on the top of the head towards posterior  aspect of skull in between injury No. 1 and 2, .4 cm x .5cm  x scalp 2 cm behind the injury No. 1.

4. Lacerated wound 1 cm x .5 cm x scalp on the right side of  the forehead 1.5cm above the right eyebrow.

5. Lacerated wound 3 cm x .5 cm x scalp on the left side of  the forehead just above the left eyebrow.

6. Traumatic swelling with contusion 18 cm x 8 cm on the  front aspect of the chest, left side and front aspect of the  left  shoulder  joint  and  left  arm front  aspect.   There  is  fracture of the upper 1/3 or the humorous of the left arm  and depressed fracture of 2nd, 3rd and 4th ribs on the left  side  of  the  chest  left  lung  is  lacerated  and  torn  in  the  middle portion.

7. Abraded contusion 15cm x 7cm along with the posterior  aspect of the left arm 6cm below the injury No. 6.

8. Incised wound 3cm x 0.5cm x skin on the dorsum of the  left hand near the root of the index finger of the left hand.

9. Stab wound 1cm x 0.25cm x skin on the dorsum of the left  hand near the root of the index finger on the left hand.

10.Stab wound 1cm x 0.25 x skin on the dorsum of the left hand,  near the root of the middle finger of the left hand.

11.Contusion 18cm x 6cm along the outer aspect of the left thee 2  cm above the knee joint.

12.Incised  wound  1.5cm  x  0.25cm  x  skin  from  the  above  downwards on the front of  the left  leg 12cm above the ankle  joint.

13.Traumatic swelling 1 cm x 5 cm along the front aspect of the left  leg 15cm below the left knee.

Page 9 of 13

14.Incised wound from above downwards 1cm x 0.5cm on the outer  aspect of the right forearm 7cm right elbow joint.

15.Contusion 15cm x 2.5cm on the front of the right side of the  chest,  9cm  below  the  right  sterno  calvicular  joint.   There  is  fracture of 3rd rib in the right side of the chest and right lung is  lacerated.

16.Contused area 15cm x 7cm on the front of the right arm on right  shoulder joint.

17.Contused area with multiple contusions on the upper part of the  back.  Both across both shoulder blades in area 18cm x 10cm.

18.Contused area with multiple contusions on both side of the back  in lower part 25cm x 12cm, 9cm below the injury No. 17 liver  and right kidney is lacerated corresponding to this ante mortem  injury.

17. During  the  trial,  the  prosecution  examined  six  witnesses  

including PWs 1 and 2, who were the injured witnesses.  The post  

mortem examination report and the injury reports were also proved  

in the trial.  A comparative reading of the aforesaid injury reports  

and the post mortem examination report along with the statements  

of the witnesses and the statements made in the First Information  

Report would indicate that the deceased received grievous injuries  

both with blunt and sharp edged weapons.  There are stab wounds,  

incised wounds along with lacerated wounds, which suggest that not  

only  blunt  weapon was  used  but  sharp  edged  weapon  was  also  

used.   In  fact,  the  injury  report  submitted by the  doctor  of  the  

Primary  Health  Center  had  also  stated  that  sharp  weapon  like  

ballam was also used.  When we looked into the evidence of the  

Page 10 of 13

doctor who had conducted the post mortem examination and given  

a report, it is revealed that his evidence is also of similar nature.  

He had stated that the death of the victim was caused due to shock  

and  haemorrhage  as  a  result  of  ante  mortem injuries,  specially  

injury nos. 6, 15 and 18.  It is, therefore, established that in the  

First  Information  Report  the  nature  in  which  the  incident  had  

occurred and the nature of the injuries received by the deceased  

and the injured were correctly recorded.  The deceased has suffered  

multiple injuries.   

18. So far as injuries received by accused – Sarjoo is concerned,  

it  has  come  in  the  statement  of  the  deceased  recorded  by  the  

investigating officer that he had snatched the lathi from Sarjoo and  

wielded the same in defence and in the process, Sarjoo sustained  

injuries.  Similar statement was also made by PW1, which clearly  

proves and establishes that the deceased –Phool Chand Tiwari had  

resisted the accused and tried to snatch his lathi, which probably  

had caused such minor injury to Sarjoo.  That fact also proves and  

establishes that none of the complainant party carried any weapon  

with them.  They had not even carried a lathi with them otherwise  

there would have been more injuries.  We do not find any vital and  

major  contradictions  in  between  the  statements  in  the  First  

Information Report and the statements recorded during the trial of  

Page 11 of 13

PWs 1 and 2.  The statements of the aforesaid witnesses are also  

sufficiently corroborated with the medical evidence on record.   

The contradictions, which have been sought to be pointed out, are  

found  to  be  only  minor  in  nature  and  it  is  no  way  affect  the  

substratum of the prosecution case.  The very fact that the accused  

were having blunt and sharp edged weapons at the time of scuffle  

shows the intention of the accused persons to commit the offence  

so as to prevent the complainant party from watering their field.  

The had gone to the place of occurrence fully prepared and properly  

armed with the intention of causing death and bodily injuries to the  

deceased as also to the other injured persons.   

19. It  was  also  argued  that  the  First  Information  Report  filed  

against all the family members of “Jagdev”.  That may be correct  

but it is also true that the family members of “Jagdev”, mentioned  

in the First Information Report, went to the agricultural field of the  

complainant  party  being  properly  armed  and  that  they  first  

prevented  them from watering  in  the  agricultural  field  and  then  

clashed with them, and therefore,  they have been named in the  

First Information Report, which was lodged immediately after the  

incident.   

20. The statements in the First Information Report is by and large  

are corroborated with the evidence of the witnesses, and therefore,  

Page 12 of 13

there cannot be any doubt against the accused persons that they  

have committed the offence.  It was next submitted by the counsel  

appearing for the appellants that Hari Ram Yadav was a minor on  

the date of occurrence.  This fact was raised for the first time before  

the High Court, which looked into the matter and upon making an  

inquiry found that he was a major on the date of occurrence.  In  

that view of the matter, the aforesaid submission is also without  

any substance.

21. We find no merit in these appeals and the same are dismissed  

accordingly.  

            …………………….……………...J.            (S.B. Sinha)

………………………………………J. (Dr. Mukundakam Sharma)

New Delhi; May 15, 2009

Page 13 of 13