REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 276 OF 2002  

State of U.P.        …. Appellant

Versus

Shobhanath and Others        …. Respondents

JUDGMENT

Dr. Mukundakam Sharma, J.

1. This  appeal  is  directed  against  the  judgment  and  order  dated  

07.04.2000  passed  in  Criminal  Appeal  No.  631  of  1984  whereby  the  

Division Bench of the Allahabad High Court acquitted the respondents  

herein from the charges of offence punishable under Section 147, 148,  

302 read with Section 149 of the Indian Penal Code, 1860 (for short “the  

IPC”)  by  setting  aside  the  order  of  conviction  and  sentence  dated  

14.8.1984  and  16.8.1984  passed  by  the  Special/Additional  Sessions  

Judge,  Sultanpur,  whereby  the  trial  court  convicted  the  respondents  

herein under Section 302 read with Section 149 IPC and sentenced each

one of them to rigorous imprisonment for life and also sentenced them to  

R.I. under various sections.   So far as accused Hansraj is concerned as he  

was found to be almost 16 years, an order was passed that instead of jail  

he be sent to children home.

2. The  aforesaid  criminal  case  was  registered  on  the  basis  of  an  

information submitted by Parasnath Dubey who was PW-1 contending  

inter alia that on 02.11.1981 at about 5 p.m., he alongwith his father, Ram  

Abhilakh  deceased,  were  returning  back  to  their  home  from  Lalganj  

Bazaar.   While said Ram Abhilakh Dubey was standing at the crossing  

of Setha Road at the shop of Ram Kishore Barayee for taking betel, the  

accused  persons,  all  of  a  sudden,  came  there  whereupon  the  accused  

Shobhanath and Triveni Prasad instigated other accused persons, namely  

Doodhnath, Vijai Pal (both sons of Ram Kumar), accused Knasu (son of  

Doodhnath) at which all of them attacked him.   It was also stated in the  

said information that first of all Vijai Pal stabbed him with a knife and  

other accused persons thereafter started beating him with lathis and that  

as a result of the said assault, he had fallen on the ground.   It was stated  

that  an  alarm was  raised  by  Parasnath  Dubey  because  of  which  Ram  

Kripal, Ram Bahal, Parasnath and Lalta Prasad and other reached there  

and saw the occurrence.    A report  of  the  incident  was  lodged at  the  

Police Station Gauriganj District Sultanpur on 02.11.1981 at about 6.35  

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p.m.    Ram Abhilakh Dubey later on succumbed to the injuries i.e. on  

3.11.1981 at 8.30 p.m.  

3. The  deceased  Ram  Abhilakh  Dubey  who  received  injuries  on  

02.11.1981  in  the  aforesaid  incident  was  taken  to  the  hospital  at  

Gauriganj where he was medically examined and an Injury Report was  

also prepared by the doctor examining him at the hospital Gauriganj, who  

looking at the grievous nature of injuries received by him sent him to the  

District Hospital, Sultanpur as his condition was deteriorating.   After the  

death of Ram Abhilakh who died in the hospital on 03.11.1984 at about  

8.30 p.m., the post mortem examination was done on 4.11.1981 at about  

4.10 p.m.

4. On the basis  of  the aforesaid written report,  a  First  Information  

Report was prepared at the Police Station and entries in the General Diary  

were made.  After the death of said Ram Abhilakh Dubey, on 3.11.1981,  

the case was converted to under Section 304 IPC and entries were made  

accordingly.    

5. On  receipt  of  the  information,  the  Police  started  investigation.  

During the course of  investigation,  the accused persons were arrested.  

After completion of the investigation, the Police filed the charge sheet  

against all the accused persons.    Charges under Section 147, 148 and  

302  read  with  Section  149  IPC  were  framed  against  all  the  accused  

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persons for having formed an unlawful assembly and in furtherance of the  

common  object,  all  of  them  committed  murder  of  deceased  Ram  

Abhilakh Dubey.   The accused persons pleaded not guilty to the charges  

framed and claimed to be tried

6. During the trial the prosecution examined number of witnesses to  

prove the occurrence and the guilt of the accused persons in murdering  

the deceased Ram Abhilakh Dubey.   The complainant and the informant  

Parasnath  Dubey  (PW-1)  was  examined  as  an  eye-witness  to  the  

occurrence.   Besides him, there were two other eye witnesses who were  

also named in the FIR namely Lalta Prasad (PW-3) and Ram Bahal Singh  

(PW-6)  who  were  also  examined  in  support  of  the  case  of  the  

prosecution.   According  to  their  statements,  they  both  witnessed  the  

occurrence.

7. Dr. D.R.Singh examined Ram Abhilakh Dubey when he was taken  

to the Primary Health Centre and he prepared an Injury Report.   He was  

examined  in  the  trial  as  PW-7 and  he  proved  the  number  of  injuries  

suffered  by  the  deceased  on 2.11.1981.    He  conducted  the  aforesaid  

examination which is after the occurrence i.e. at about 7.15 p.m.  

8. Dr. A.C. Joshi who has conducted the post mortem was examined  

as PW-5 and the post mortem report was exhibited as Ext. Ka-10.

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9. The Investigating Officer who submitted the chargesheet as Ext.  

Ka  20  was  examined  as  one  of  the  prosecution  witnesses.    The  

statements of all the accused persons under Section 313 of the Code of  

Criminal Procedure  (for short “the CrPC) were recorded.    

10. The defense also produced three witnesses in this case in order to  

prove  the  formal  paper  filed  on  their  behalf  to  establish  enmity  and  

motive because of which they are falsely implicated in this case.

11. The  defense  case  was  that  both  PW-3  and  PW-6  namely  Lalta  

Prasad and Ram Bahal Singh respectively came in the witness box in  

order  to  help  the  complainant  Parasnath  Dubey because  they  together  

formed one party in the previous litigation and criminal cases are pending  

between them and the accused party.    

12. The  Additional  Sessions  Judge  by  his  judgment  and  order  

convicted  all  the  accused  persons  under  the  aforesaid  sections  and  

sentenced them to imprisonment for life.   So far as Shobnath, Triveni  

Prasad,  Vijai  Pal,  Sudhakar  and  doodhnath  are  concerned,  they  were  

sentenced to life imprisonment under Section 302 read with Section 149  

IPC.   They were further sentenced to two years R.I. under Section 148  

IPC and one year R.I. under Section 147 IPC.

13. So far as accused Hansraj alias Hansoo is concerned, since he was  

aged about 16 years, therefore the benefit of the Children Act, 1960 was  

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extended to him.  He was not sentenced to jail and was directed to be in  

Children Home.

14. Aggrieved by the aforesaid order of conviction and sentence, the  

accused  persons  filed  an  appeal  before  the  High  Court  of  Allahabad,  

Lucknow Bench,  which was heard.  The High Court after considering the  

materials on record set aside the order of conviction and sentence passed  

against the accused respondents and acquitted all of them of the aforesaid  

charges.    

15. Being aggrieved by the aforesaid order of acquittal passed by the  

High  Court,  the  present  appeal  was  preferred  by  the  State  of  Uttar  

Pradesh which was entertained and on which we have heard the learned  

counsel appearing for the respective parties.    

16.   On going through the records and the order setting aside the order of  

conviction and sentence, we find that the trial court while holding all the  

respondents guilty of the charges leveled against them held that the dying  

declaration of the deceased itself  would prove and establish the act of  

involvement  of  the  accused  persons  in  the  incident  of  murdering  the  

deceased.  The Additional Sessions Judge also appreciated the statements  

of PW-1, the informant as also the statements of PW-3 and PW-6 and  

found that their statements are corroborated to each other and also by the  

medical  evidence.   According  to  the  trial  court,  there  was  no  

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contradiction in the statements of the witnesses with regard to the weapon  

being carried by them in their  hands and further  about the manner  of  

assault given by them to the deceased Ram Abhilakh Dubey.    Having  

held  thus,  the  learned  Additional  Sessions  Judge  passed  the  order  of  

conviction and sentence against all the accused persons.  

17. The High Court, however, after hearing the counsel appearing for  

the parties held that so far as the dying declaration is concerned, the same  

could  not  have  been  given  by  the  deceased  immediately  after  the  

occurrence  as  the  prosecution witnesses  themselves  had stated  that  he  

became unconscious after receiving the blows and therefore he was not in  

a stage of giving any such statement although alleged by the prosecution.

The High Court also held that there are discrepancies in the Injury  

Report and in the post mortem report as also in the x-ray report and that a  

number of injuries and their nature did not corroborate it with each other.  

It  was pointed out on the other hand the aforesaid four papers namely  

Inquest  Report,  Injury Report,  Post mortem Report  and General Diary  

indicate different injuries beginning from two injuries extending to four  

injuries and then completed in five injuries.   It was also held by the High  

Court that all the three witnesses who are said to be eye-witnesses namely  

PW-1, PW-3 and PW-6 are all  chance witnesses and that  they do not  

belong to the place of occurrence and that they are interested witness in  

giving favourable evidence for roping in the accused persons with whom  

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all of them had long standing enmity.   It was also held by the High Court  

that if all the accused persons had given lathi blows and knife blow, then  

the number of injuries should have been many more.

The High Court also held that if the aforesaid eye witnesses were  

present  at  the  place  of  occurrence  then  they  would  have  certainly  

interfered and intervened in the incident and would have definitely chased  

the culprit and would have tried to catch him and as nothing of that nature  

is stated, therefore only presumption would be that they were not present  

at the place of occurrence.  Consequently, it was held that the prosecution  

has failed to prove its case and consequently all the accused persons were  

acquitted.

18. So far as discrepancies between the statements of the eye witnesses  

and  the  medical  evidences  as  pointed  out  by  the  High  Court  are  

concerned, the same appear to be based  on  misreading  of  the  evidence  

on   record.    The   incident   herein  took  place  at  about  5  p.m.  on  

2.11.1981.   It was the month of November, but at 5 p.m., there would be  

still day light.   It has also come in evidence that the deceased had gone to  

Gauriganj Bazaar alongwith PW-1 as it was a market day.   In a market  

day people usually go to the market and therefore presence of PW-1 with  

deceased on that particular day also appears to be natural.   The place of  

occurrence is near a betel shop where the deceased had gone for taking  

betel.   The place of occurrence is a tri-junction and by the shop of Ram  

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Kishore Barayee where the deceased had gone to take betel  when the  

accused persons allegedly attacked him with a knife and lathis in their  

hands.

19. It  is  stated  in  the  First  Information  Report  and  also  in  the  

statements of the eye-witnesses that the Vijai Pal had a knife and other  

respondents had lathis in their hands and that at the instigation of Triveni  

Prasad and Shobhanath, Vijay Pal inflicted knife blow on the deceased  

whereas  the  other  accused-respondents   started  beating  by  means  of  

lathis.

20. The First Information Report was taken down at the Police Station  

on  2.11.1981  at  6.35  p.m.  and  medical  examination  was  done  at  

2.11.1981 at 7.15 p.m.    Injury Report which is proved as Ext. Ka-11  

states that about five injuries were found on the body of Ram Abhilakh  

when he was taken to the Primary Health Centre.

21. In the post mortem examination also, five injuries were found on  

the  body  of  the  deceased.   Said  injuries  found  in  the  post  mortem  

examination  when  compared  with  the  injuries  recorded  in  the  injury  

report, it would be established that all the injuries are similar in nature.  

So far as Inquest Report is concerned, the same is prepared by the police  

who are  not  experts  like  the doctors  and therefore  no such weightage  

could be given on the Inquest Report.   It is also settled law that Inquest  

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Report cannot be treated as a piece of admissible evidence.   One of the  

main grounds for acquitting the accused respondents by the High Court  

was alleged discrepancies in the aforesaid reports which according to us  

is based on misreading of evidence and misappreciation.  

22. The incident had happened at about 5 p.m. and the said fact was  

reported  to  the  Police  at  6.30  p.m.  The  High  Court  doubted  the  

prosecution case also because of the aforesaid delay in making the report  

of the incident to the Police.  According to the High Court, the Police  

Station was only about one furlong away and therefore, there was delay  

in reporting.  Let us therefore now proceed to discuss if there was any  

delay.

23.  PW-1,  the  informant  who  was  the  son  of  the  deceased  in  his  

statement has clearly stated in detail  as to how the incident  has taken  

place  and as  to  why  he  did  not  intervene  when his  father  was  being  

assaulted by the said accused persons.   He has stated that he could not  

immediately get any mode of conveyance to take his father to the Police  

Station or to the hospital and he had to wait for some time for getting a  

conveyance to enable him to shift his father to the Police Station which  

they reached at about 6.30 p.m. when report was recorded.   The victim  

was examined in the Primary Health Centre at about 7.15 p.m. i.e. within  

45 minutes of the incident being reported to the Police.  That being so, it  

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cannot  be said that  there  was any undue delay either  in  reporting the  

incident to the police or taking the victim to the hospital.    

24. The High Court  has  doubted  the  entire  prosecution  case  on the  

ground of the aforesaid delay of about an hour in reporting the incident to  

the Police.   But,  it  is proved and established on record that the entire  

incident as it  happened was mentioned in the First Information Report  

wherein  the  name  of  the  eye-witnesses  were  also  mentioned.    The  

informant examined himself as PW-1.   He narrated the entire incident as  

it  happened  on  the  day  of  occurrence  and  he  was  cross-examined  at  

length, but his evidence could not be shaken.     He had also explained the  

circumstances  for  which  he  was  not  been  assaulted  by  the  accused  

persons.   He also stated in his deposition that he had not taken any such  

step to catch hold any of such accused persons on account of fear and also  

because  he  did  not  have  any  weapon  in  his  hands.   Further,  he  has  

categorically stated that he raised alarm to save his father from the assault  

by accused persons.  The said evidence of PW-1 appear to us to be cogent  

and natural.   The same also gets corroborated by the evidence of other  

two  eye  witnesses  namely  PW-3  and  PW-6  and  also  by  the  medical  

evidence namely the Injury Report and the Post mortem Report.

25. The High Court was also not right in holding that the aforesaid two  

eye witnesses could not be accepted as eye witnesses to the occurrence.  

The High Court held that all the said three witnesses as chance witnesses.  

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The said findings are based on surmises and conjectures.   The date of the  

incident was a market day at Gauriganj and therefore it was natural that  

persons from the nearby areas would go to the market place.   Therefore,  

PW-1 accompanying his father on the date of the incident to the market  

and PW-3 and PW-6 being present at the place of occurrence cannot be  

said to be unnatural.    

26. So far as the dying declaration of the deceased is concerned, the  

same apparently was not recorded either by the Police Officer or by the  

doctor.  There is some doubt about making of such dying declaration by  

the deceased and therefore, the dying declaration said to have been made  

by the victim was not correctly relied on by the High Court.  But even if  

the said dying declaration is  taken out  of  purview of the evidence on  

record,  even  then  the  statements  of  the  eye-witnesses  can  under  no  

circumstances be doubted and held as untrustworthy.    

27. We find no reason as to why close relatives of the deceased would  

try to rope in someone else as the murderers of their near relation and  

give up the actual accused.  It is against the human conduct.   In a case of  

murder the near relations would make all endeavour to see that actual  

culprits are punished  

28. In the light of the aforesaid discussion, we allow this appeal, set  

aside the order of acquittal passed by the High Court and restore the order  

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passed  by the  trial  court.   The  bail  bonds of  the  accused persons  are  

cancelled.  They shall surrender to serve out the remaining part of their  

sentence.   

29.  So far as respondent No. 5 (Hansraj) is concerned, the order of the  

Trial Court is restored.

…………………………..J.              [Dr. Arijit Pasayat]

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

New Delhi, May 8, 2009

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