REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1590 OF 2007  

Akhtar & Ors.          …. Appellants

versus

State of Uttaranchal     …. Respondent

JUDGMENT

Dr. Mukundakam Sharma, J.

1. This statutory appeal arises out of the final judgment and order dated

18.07.2007 passed by the Division Bench of the High Court of Uttaranchal

by  which  the  High  Court  allowed  the  appeal  filed  by  the  State  of

Uttaranchal  and  convicted  all  the  appellants  herein  under  Sections  148,

302/149, 307/149 and Section 324/149 of the Indian Penal Code (in short

“the IPC”) and sentenced them to undergo rigorous imprisonment for life by

setting aside the order of acquittal passed by the trial court.

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2. The prosecution story, in brief, is that on 13.05.1987, at about 10.00

AM, complainant Jamil Ahmad (PW-2) along with his brothers Asgar

and  Shakil  (both  deceased),  and  nephew  Mobin  (PW-3),  were

ploughing  their  field,  bearing  Khasra  No.  967,  situated  in  Village

Beljuri  within  the limits  of Police  Station,  Kashipur.   Their  tractor

was being driven by driver Radhey Shyam (PW-4).   They were in

litigation  over  possession  of  said  field  with  accused-Alla  Bux and

others.   Stay order  had  also  been  obtained  by them regarding  the

same.  It  is  alleged that  on account  of  such running feud between

them, Alla Bux and his associates were inimical to the complainant

(Jamil Ahmad) and his brothers and that on aforesaid date and time

when  the  plot  was  being  ploughed,  accused  –  Alla  Bux,  Akhtar,

Mohd. Umar, Nuru, Rais alias Gabru, Yamin, Yasin and Amir Bux,

armed with deadly weapons – pistol, tabals (a sharp edged weapon),

knives and lathies, reached in the field. Accused Alla Bux exhorted

his companions whereupon all the accused/appellants started giving

blows with the weapons they were armed with, on the complainant,

his brothers and nephew.  The accused/appellant Akhtar, who wielded

a country made pistol, fired upon them and wounded Shakil (one of

the deceased) and Mobin (one of the injured).  In the incident all of

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them,  namely  Asgar,  Shakil,  Jamil  Ahmad  and  Mobin  sustained

severe injuries. On account of the injuries thus sustained Asgar and

Shakil  died on the spot itself.   Asgar (another deceased) and Jamil

Ahmad  (another  injured)  also  received  injuries  of  sharp  edged

weapons.  On raising alarm by Jamil Ahmad and others, many other

persons  from  nearby  place  reached  at  the  spot  whereupon

accused/appellant ran away towards river Dhela.  

3. Leaving  the  dead  bodies  of  Asgar  and  Shakil  at  the  spot,  Jamil

Ahmad  along  with  Mobin  went  to  Kashipur.   The  written  First

Information  Report  (in  short  “the  FIR”)  was  got  scribed  by  one

Anwar Hussain on dictation of Jamil Ahmad (PW-2).  Jamil Ahmad

then went to Police Station, Kashipur and lodged the said FIR with

the police.   The police registered the FIR being Crime No. 160 of

1987 on 13.5.1987, at about 11.20 AM against all the eight accused

persons relating to offences punishable under Sections 147, 148, 149,

307 and 302 IPC and thereafter started investigation.  Shri R.S. Lal

Sharma, Sub-Inspector (PW-9) was entrusted with the investigation in

the matter.  He accompanied by Kalyan Singh (PW-7), another Sub-

Inspector, reached the spot.  The dead bodies were taken by the police

into their  custody.  The dead bodies were sealed and sent  for post

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mortem examination.   The  police  prepared  inquest  reports,  Police

Form No. 13, sketch of the dead bodies, sketch map of the spot and

the letters  requesting  the  Medical  Superintendent,  for  post  mortem

examination of the dead bodies.  Police also collected the unstained

soil  and  blood  stained  soil  from the  place  of  incident  along  with

empty shells of cartridges as well as live cartridges and duly sealed

the same on the spot and prepared memorandums.  Meanwhile, on the

same day, i.e. on 13.5.1987 injuries on the person of Jamil Ahmad

(PW-2) and Mobin (PW-3), were got examined in L.D. Bhatta Civil

Hospital, Kashipur, at about 12.00 noon and their injury reports were

prepared by Medical Officer on duty.  Post mortem examination on

the dead bodies of Asgar and Shakil was conducted on the next day

i.e. 14.05.1987 at 10.00 AM and 10.30 AM respectively by Dr. D.K.

Lumba, who prepared the post mortem examination reports.   

4. During  investigation,  the  witnesses  were  interrogated  and  all  the

accused  were  arrested.   From the  possession  of  accused/appellant

Akhtar, a pistol, used in the crime, was recovered.  The said country

made pistol along with empty shells of cartridges, recovered from the

spot itself by the police, were sent to Ballistic Expert, who gave its

report  supporting  the  prosecution  case.   On  completion  of

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investigation the police submitted charge sheet on 30.05.1987 against

all the eight accused/appellants, namely, Akhtar, Mohd. Umar, Nuru,

Rais alias Gabru, Yamin, Yasin and Amir Bux and Alla Bux.

5. The Addl. Chief Judicial Magistrate, Kashipur took cognizance of the

case and committed the case to the court of Sessions, Nainital.  The

learned Sessions Judge, Nainital after hearing the prosecution and the

defence, framed charges on 3.5.1988.  Whereas the accused-Akhtar

was charged with offences under Sections 148, 302, 307 and 324 read

with Section 149 IPC, the co-accused Mohd. Umar, Nuru, Rais alias

Gabru, Yamin and Yasin were charged with offences under Sections

148, 302/149, 307/149 and 324/149 IPC.  The co-accused Amir Bux

and Alla Bux were, however, charged with offences under Sections

147, 302/149, 307/149 and 324/149 IPC.

6. The trial  court  by its  order  dated 20.06.1989 held that  the charges

framed against the accused were not proved beyond reasonable doubt

and consequently  acquitted  them of  all  the charges  framed against

them.    Aggrieved  by  this  order  the  State  filed  an  appeal  before

Allahabad  High  Court  on  29.09.1989  in  which  leave  was  granted

under Section 378 (3) of the Code of Criminal Procedure, 1973 (in

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short “the CrPC”) on 21.05.1992.  However, the said appeal came to

be  transferred  for  its  disposal  to  the High Court  of  Uttaranchal  at

Nainital under Section 35 of U.P. Reorganization Act, 2000.  It is also

to be mentioned at this stage that accused Akhtar, Yasin and Alla Bux

died  during  the  pendency  of  the  appeal  in  the  High  Court  and,

therefore, the said appeal stood abated so far those three accused were

concerned.  The  High  Court  of  Uttaranchal  allowed  the  appeal

preferred by the State and set aside the judgment and order of the trial

court dated 23.06.1989 and ordered for conviction of all the surviving

five accused.  Mohd. Umar,  Nuru,  Rais  alias Gabru, Amir Bux and

Yamin was convicted under Sections 148, 302 r/w 149, 324 r/w 149

IPC. Considering relevant factors on the question of sentence, Mohd.

Umar,  Nuru,  Rais  alias  Gabru,  Amir  Bux  and  Yamin  was  given

rigorous  imprisonment  for  a  period  of  one  year  u/s  148  IPC;

imprisonment for life u/s 302 r/w 149 IPC; rigorous imprisonment for

a  period  of  five  years  u/s  307  r/w  149  IPC;  and  rigorous

imprisonment  for  a  period  of  one  year  u/s  324  r/w 149  IPC.  The

appeal against accused Akhtar, Yasin, Allah Bux abated due to their

death during the pendency of the appeal in the High Court.

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7. Aggrieved by the said decision of the High Court, the five appellants

have preferred the present appeal under Section 379 CrPC.

8. Before  dwelling  further  into  the  matter,  it  would  be  pertinent  to

mention here that the ante mortem injuries were found on the body of

two deceased and injuries were also found on the body of informant

Jamil (PW2) and Mobin (PW3). The first post mortem examination

report,  genuineness  of  which  has  been  admitted  by  the  defence,

discloses that autopsy was conducted on 14.05.1987 at 10.30 AM on

the dead body of Shakil by Dr. A.K. Lumba.  

9. Another post mortem examination report, genuineness of which has

also  been  admitted  by  the  defence,  discloses  that  autopsy  was

conducted on the dead body of Asgar on 14.05.1987 at about 10.00

AM by Dr. A.K. Lumba. In the opinion of the Medical Officer, both

Shakil and Asgar died on account of shock and haemorrhage resulting

due to ante mortem injuries.

10. The medical  report  with  respect  to  the injuries  caused to  two eye-

witnesses,  namely Jamil  Ahmad and Mobin,  genuineness  of  which

has  also  been  admitted  by  the  defence  counsel,  discloses  that  on

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13.05.1987 at about 12.15 p.m., injuries were found on the body of

Jamil  Ahmad  (PW-2)  by  the  Medical  Officer  who  examined  the

injured at L.D. Bhatt Civil Hospital, Kashipur. In the opinion of the

Medical Officer the injuries were fresh and simple in nature, caused

by sharp edged weapon.  The same Medical Officer also examined

PW-3, Mobin and opined that four injuries were caused by some hard

blunt object and two injuries were caused by a fire arm and all the

injuries were fresh in duration.  

11. Admittedly, there is no dispute as far as the genuineness of the injury

reports, post mortem reports and also the genuineness of the Ballistic

Expert’s  report  is  concerned.  As  defence  has  already admitted  the

same no  useful  purpose  would  be  served  to  discuss  those  reports

again.   

12. Undisputedly, it was a day light incident, the motive of accused was

also  established  on record.  There is  concurrent  finding of  the trial

court as well as of the High Court that there did exist enmity between

the  complainant  party  and  the  accused  regarding  ownership  and

possession  on  Khasra  No.  967.  Jamil  Ahmed  (PW-2)  and  Mobin

(PW-3) in their deposition have stated that on account of dispute and

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litigation  with  regard  to  Khasra  No.  967  the  accused  bore  enmity

against them (complainant) and the accused were on the look out to

kill them (complainant).

13. In the case of  Krishan v. State of Haryana, [2006 (12) SCC 459],

this Court has taken the view that if the prosecution case supported by

two  injured  eye-witnesses  and  if  their  (injured  eye-witnesses)

testimony  is  consistent  before  the  police  and  the  court  and

corroborated  by  the  medical  evidence,  their  testimony  cannot  be

discarded.  Similarly,  in  the  case  of  Surender  Singh  v.  State  of

Haryana, [2006 (9) SCC 247], at page 250, this Court has opined

that  the testimony of an injured witness has its  own relevancy and

efficacy. The fact that the witness was injured at the time and in the

same occurrence lends support to the testimony that the witness was

present  during occurrence and he saw the happening with  his  own

eyes.

14. This court has taken the view in State of  M.P. v. Mansingh, [2003

(10) SCC 414], at page 419 that the evidence of injured witnesses has

greater evidentiary value and unless compelling reasons exist,  their

statements  are not to be discarded lightly.  It  was contended by the

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appellant that the testimony of Jamil Ahmed (PW-2) and Mobin (PW-

3)  cannot  be  relied  on  as  these  two  eye  witnesses  were  allegedly

highly interested witnesses and were related to the deceased. In our

considered  view,  merely  because  the  witnesses  in  question  were

related to the deceased cannot be a ground for non-acceptance of their

evidence, which otherwise was found to be trustworthy. It is true that

these two witnesses are related to the deceased but at the same time

one cannot lose sight of the fact that these two witnesses were also

injured witnesses. It is extremely difficult to believe that the injured

witnesses who themselves got injured and whose close relatives lost

their  lives  would  shield  the  real  culprits  and  name somebody else

only  due  to  some  enmity.  The  defence  had  ample  opportunity  to

cross-examine these two injured eye witnesses but records show that

no suggestions were put to them as to how they received the injuries,

mentioned in the medical reports. In fact, various documents filed by

the defence with respect to litigation among themselves itself give the

unmistakable impression that there was indeed motive to attack the

deceased and the injured witnesses.  

15. Though declared hostile by the prosecution, Radhey Shyam (PW-4),

an another eye witness who was the driver of the tractor on that day at

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the  place  of  occurrence  substantially  corroborated  the  prosecution

version to the extent that on the date of occurrence at 10.00 AM he

was ploughing field of the deceased when some 7-8 persons reached

there, he got frightened and ran away from the place of occurrence.

This independent witness has supported the date, time and place of

the  incident  as  deposed  by the  two  injured  eye  witnesses  namely

Jamil  Ahmed  (PW-2)  and  Mobin  (PW-3).  Further,  even  if  the

recovery of the pistol has not been proved beyond reasonable doubt,

the  testimony  of  the  two  injured  eye  witnesses,  which  is  quite

consistent and has further been corroborated by the medical evidence,

cannot be disbelieved.  

16. It  has  been argued that  non-examination  of  the concerned medical

officers is fatal for the prosecution. However, there is no denial of the

fact that the defence admitted the genuineness of the injury reports

and the post mortem examination reports before the trial court. So the

genuineness  and  authenticity  of  the  documents  stands  proved  and

shall be treated as valid evidence under Section 294 of the CrPC.  It is

settled position of law that if the genuineness of any document filed

by a  party  is  not  disputed  by the  opposite  party it  can be read  as

substantive  evidence  under  sub-Section  (3)  of  Section  294  CrPC.

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Accordingly,  the  post-mortem  report,  if  its  genuineness  is  not

disputed by the opposite party, the said  post-mortem report  can be

read as substantive evidence to prove the correctness of its contents

without the doctor concerned being examined.

17. With regard to the contention of semi-digested food being found in

the  stomach  of  the  deceased,  it  has  been  contended  that  both  the

deceased were fasting as it was the month of holy Ramjan. So, it was

argued  that  there  could  not  have been semi digested  food  in  their

stomach at 10.00 AM. We are unable to accept this contention as it is

common  knowledge  that  during  holy  ramjan  heavy  food  is  taken

before sunrise. Jamil Ahmad (PW-2) stated that Shakil (deceased) had

taken ‘sahri’ i.e. morning food taken by Muslims before sunrise on a

fasting day.  Since the incident was of the month of May, there cannot

be denial of the fact that after a period of five hours, there could be

some semi digested food in the stomach of the deceased which has in

fact  been  confirmed  by  the  Doctor  conducting  the  post  mortem

examination.  There  might  be  some  minor  contradiction  in  the

prosecution version but the same would not render the trial fatal. The

evidences adduced in the present case, despite minor discrepancies,

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clearly establish the involvement of the accused appellant on the date

of occurrence.  

18. In  Sarbul Singh and Others  v.  State of Punjab, [1993 Supp (3)

SCC 678], where some semi-digested food was found in the stomach

of  the  deceased  therein although  there was  evidence  that  they had

taken  food  immediately  before  the  occurrence,  this  Court  held  as

under:

“6. We see absolutely no reason to discredit the evidence of the three eyewitnesses whose presence cannot be doubted. Now coming to the semi-digested food, it  cannot be ruled out that the old lady might not have eaten anything earlier. Merely because the illiterate witnesses stated that they took their  meals  immediately  before  the  occurrence  cannot  by itself  be a circumstance to discredit  their  evidence on the basis of medical evidence regarding the presence of semi- digested food.  It is also clear from the textbooks on medical jurisprudence  that  the  stomach  contents  cannot  be determined with precision at the time of death.  As rightly held  by  the  High  Court,  the  trial  court  grossly  erred  in basing  its  verdict  mainly  on  the  nebulous  medical observation.”

This  position  of  law has  been  recently  reiterated  by this  Court  in

Virendra @Buddhu & Anr. v. State of U. P. [2008(15) SCALE 283].  

19. In view of the aforesaid discussion, we do not find any infirmity in

the judgment and order passed by the High Court. Accordingly, the

appeal  filed by the appellants  herein is  dismissed.  The High Court

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decision  against  each  accused  i.e.  Mohd.  Umar,  Nuru,  Rais  alias

Gabru, Amir Bux and Yamin convicted under Sections 148, 302/149,

307/149  and  Section  324/149  IPC  and  sentenced  to  rigorous

imprisonment  for  a  period  of  one  year  under  Section  148  IPC,

imprisonment  for  life  under  Section  302/149  IPC,  rigorous

imprisonment for a period of five years under Section 307/149 IPC

and rigorous  imprisonment  for  a period of  one  year under  Section

324/149  IPC,  are  hereby upheld.   The  sentences  awarded  to  them

shall run concurrently.               

…………………………..J. (S.B. Sinha)

…………………………..J. (B. Sudershan Reddy)

……………………………J. (Dr. Mukundakam Sharma)

New Delhi, April 9, 2009

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