REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.    933         OF 2009 [Arising out of Special Leave Petition (Criminal) No. 9155 of 2008]

SUBHASH KUMAR     … APPELLANT

Versus

STATE OF UTTARAKHAND           … RESPONDENT

J U D G M E N T

S.B. Sinha, J.

1. Leave granted.

2. This  appeal  is  directed  against  a  judgment  and  order  dated  

27.08.2008 holding the appellant guilty for commission of offence under  

Section 324 read with Section 34 of the Indian Penal Code (“IPC” for  

short) and sentencing him to undergo one year’s rigorous imprisonment  

and fine of Rs.1,000/- only.

3. One  Surendra  Kumar  Sehgal  was  a  student  of  D.B.S.  (P.G.)  

College.  Appellant herein also was a student of B.A. Part II of the same

college.  On 31.1.2000, when Surendra Kumar Sehgal was entering the  

college through its gate to attend his N.C.C. class, appellant along with  

three  other  persons  who  were  armed  with  “Khukries”  (a  sharp  edged  

weapon) assaulted him on instigation made by the appellant as a result  

whereof he suffered five injuries, which are as under:

“i. Incised  wound  6  cm  x  1.0  cm  muscle  deep on back side of head 11 cm above  right ear.  This injury was fresh and it was  bleeding.  

ii. Incised wound 2 cm x 0.5 cm x skin deep backside of  the head and 7 cm below the injury no.1 and the blood  was oozing from this injury.  

iii. Incised wound 5 cm x 1 cm x muscle deep, on the left  of head and 6 cm above the left ear.

iv. Incised wound 2.5 cm x 1.1. cm x muscle deep.  In the  left  upper forearm of index finger of left  hand from  which blood is coming out.

v. Incised wound 2 cm x 1 cm x muscle deep on the side  of middle finger of left hand and blood is coming out  this.”

4. Appellant was tried for commission of an offence under Sections  

307, read with Section 34 of the IPC along with Surendra @ Sonu, Manoj  

@ Monu and Hargopal.  Surendra and Manoj are brothers of the appellant  

whereas Hargopal is their maternal uncle.  

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5. The learned trial judge recorded a judgment of conviction finding  

the accused persons guilty of commission of offence under Section 324  

read with Section 34 of the IPC.   

However, by reason of the impugned judgment whereas the other  

accused, namely, Surendra, @ Sonu, Manoj @ Monu & Hargopal were  

given  the  benefit  of  doubt,  the  judgment  of  conviction  and  sentence  

passed  by  the  learned  trial  judge  as  against  the  appellant  was  upheld.  

However, his sentence was reduced to rigorous imprisonment for one year  

from three years.   

6. Mr. Sanjeev Bhatnagar, learned counsel appearing on behalf of the  

appellant would urge:

(i) On a plain reading of the First Information Report (“FIR” for  

short) it would appear that the appellant was not armed with  

any  “Khukri”;  no  overt  act  was  attributed  to  him and  his  

involvement in the matter both in regard to possession of an  

arm as also an instigation to others to assault him being an  

outcome  of  improvement  in  the  depositions  of  the  

complainant  before  the  court,  the  impugned  judgment  is  

liable to be set aside.  

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(ii) Out of four accused, three having been acquitted, appellant in  

any event could not have convicted with the aid of Section 34  

of the IPC.  

7. Mr. Jatinder Kumar Bhatia, learned counsel appearing on behalf of  

the State, on the other hand, would support the impugned judgment.  

8. The occurrence took place at about 1.00 p.m. on 31.1.2000.   The  

FIR was lodged on the same day at about 3.15 p.m.  The statement of the  

informant was recorded by the Investigating Officer. It was hand written.  

Before us, the finding of fact arrived at by both the courts below that the  

informant  received  injuries  inflicted  on  him by  “Khukri  (s)”  is  not  in  

dispute.  It also stands admitted that the first informant was assaulted with  

a  sharp  edged  weapon  by  more  than  one  person.   In  the  FIR,  it  had  

categorically been stated that the appellant along with three others who  

were  armed with  “Khukri”  accosted  him at  about  1’O clock  when he  

entered in the College through a gate.   

9. It is also not in dispute that he sustained injuries on his head as also  

on  his  hand.   He  named  Narendra  Singh  (P.W.1)  as  one  of  the  eye-

witnesses.  He, however, was declared hostile.  It has, however, not been  

disputed that the said Narendra Singh and one Shailly brought him to the  

hospital.  He claimed to have identified the other three accused.  

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The High Court, however, accorded benefit of doubt to the three  

accused as no test identification parade was held.   

The  first  informant,  who  examined  himself  as  P.W.2,  in  his  

evidence stated:

“2. The incident is of 31.1.2000, day Monday  and time about 1 p.m.  At that time I was going  to attend my NCC class in DBS College.   As  soon as I parked my scooter outside on the stand  and  entered  in  college,  in  the  meantime  Subhash,  Surender  @  Sonu,  Manoj  and  their  maternal  uncle (Mama) Hargopal  came behind  me.  They had been holding Khukhries in their  hands.  As these people came and Subhash put  his hand on my shoulder.  I saw behind and in  the  meantime  Subhash  said  kill  him  “Jaan  se  Maar  Dalo  Saley  ko”   after  this  Hargopal  assaulted  with  Khukhri  on  my  head  and  thereafter  Subhash  also  started  assaulting  with  Khukhri  and  then  all  four  people  started  very  badly to me.  All the four accused are present in  the court.”

Paragraph 9 of his evidence to which our attention has been drawn  

by Mr. Sanjeev Bhatnagar reads as under:-

“9. The  inspector  enquired  from  me  with  regard to this case.  I had written in the report  that Subhash was having Khukri.  It is wrong to  suggest  that  it  is  not  written  anywhere  in  the  report  that  Subhash  was  holding  Khukhri  in  hand.”

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We may place on record that our attention has also been drawn to  

the deposition of Mr. R.K. Kanojiya, SI of P.S. Dalanwala, Dehradun who  

examined himself as P.W.4, which reads as under:

“17. I  recorded  the  statement  of  Surendra  Kumar on 1.2.2000.  When I went to take the  statement of injured to hospital then because of  his  unconsciousness  and  did  not  record  statement of the doctor on 31.1.2000.  I did not  write  in  the  case  diary  that  on  31.1.2000,  the  injured was admitted on which bed and in which  ward.  It  is incorrect to suggest that I had not  gone  to  take  the  statement  of  the  injured  to  hospital on 31.1.2000.  In the investigation, the  subscribe  which  I  received  in  that  all  the  accused  persons  are  shown  having  Khukri  in  their hands, only Subhash is having Khukhri in  hand is not written.”

From  his  evidence,  it  appears  that  he  had  gone  to  record  the  

statement of the informant in the hospital on 31.1.2000; when he reached  

the hospital, the informant had become unconscious and was in a serious  

condition.  His statement could be recorded only on 1.2.2000.  It was on  

that date the other accused persons were named.   

10. Appellant surrendered in the court of Chief Judicial Magistrate on  

7.2.2000.  Manoj and Surendra were arrested on 11.2.2000.  It is only on  

7.3.2000, Hargopal had surrendered before the court.   

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11. FIR as is well known is not to be treated to be an encyclopedia.  

Although the effect of a statement made in the FIR at the earliest point of  

time should be given primacy, it would not probably be proper to accept  

that all particulars in regard to commission of offence in detail must be  

furnished.   

The prosecution has brought on record that four persons assaulted  

the injured.  P.W. 2 sustained serious injuries.  He felt unconscious but  

must have regained consciousness for some time.  After he was brought to  

the hospital then he could get the FIR lodged.  If the deposition of P.W. 4  

is to be believed, the prosecution must be held to have proved that he  

became unconscious again as a result whereof his statement could not be  

recorded on that date.  

12. Not only the courts  below but  also the parties  proceeded on the  

basis  that  the  FIR  disclosed  that  the  appellant  was  also  armed  with  

“Khukri”.  We say so because we do not find that the contention raised  

before us by Mr. Bhatnagar, viz., that the FIR did not disclose the same  

had been raised before the courts below.  The only suggestion given to the  

Investigating Officer, as noticed hereinbefore, was that it was written that  

all accused were shown having Khukri in their hands and not Subhash  

alone.   

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13. The testimony of Surendra (P.W.2) – informant – had been relied  

upon by both the courts below.  We do not think that any case has been  

made out to take a different view.   

All the four accused were convicted by the learned trial judge.  The  

High Court, however, having regard to the fact that the other accused had  

not  been named in  the FIR and no test  identification parade was held  

thought it fit to extend the benefit of doubt in favour of three of them.  

That would not mean that on the same analogy, a judgment of acquittal  

should have been recorded in favour of the appellant also.  

Keeping in view the place of occurrence, it will not be hazardous to  

presume that the incident had taken place within a very short time. P.W. 2  

in his evidence stated that three persons came from behind. He might not  

have been able to remember their names at the time when the FIR was  

lodged. But, in our opinion, as the offence must have been committed by  

more than one person and the appellant having been named in the FIR and  

specific  overt  act  having  been  attributed  to  him  by  P.W.  2  in  his  

deposition,  we  are  of  the  opinion  that  no  case  has  been  made  out  to  

interfere with the impugned judgment.  

14. For the aforementioned reasons, the appeal is dismissed.  

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.……………………………….J. [S.B. Sinha]

...…………………………..…J.    [Dr. Mukundakam Sharma]

New Delhi; May 06, 2009

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