State of U.P. Vs.
Shobhnath & Ors.  INSC 1013 (8 May 2009)
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
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.
aforesaid criminal case was registered on the basis of 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 p.m. Ram Abhilakh Dubey later on succumbed to the injuries i.e. on
3.11.1981 at 8.30 p.m.
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.
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.
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
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
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.
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
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.
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)
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.
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.
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.
far as accused Hansraj alias Hansoo is concerned, since he was aged about 16
years, therefore the benefit of the Children Act, 1960 was extended to him. He
was not sentenced to jail and was directed to be in Children Home.
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.
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
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 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.
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 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.
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 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.
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.
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.
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 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
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.
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 cannot
be said that there was any undue delay either in reporting the incident to the
police or taking the victim to the hospital.
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
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.
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.
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.
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
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 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.
far as respondent No. 5 (Hansraj) is concerned, the order of the Trial Court is
[Dr. Arijit Pasayat]