Subhash Chandra &
Ors. Vs. State of U.P.  INSC 1098 (15 May 2009)
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
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
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.
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 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.
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
investigating officer after recording the statements of the witnesses and
collecting the evidence completed his investigation and submitted the charge
trial court framed charges against the accused to which the accused persons
pleaded not guilty. Consequently, witnesses were examined on behalf of 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
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.
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.
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.
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-`-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 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.
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
the body of injured Jainarain, PW 1, following injuries was found:
1. 4 cm swelling just
above the right elbow.
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
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.
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.
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).
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
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
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.
1.5cm x 0.25cm x skin from the above downwards on the front of the left leg 12cm
above the ankle joint.
1 cm x 5 cm along the front aspect of the left leg 15cm below the left knee.
14.Incised wound from
above downwards 1cm x 0.5cm on the outer aspect of the right forearm 7cm right
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.
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 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
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 PWs 1 and 2.
The statements of the aforesaid witnesses are also sufficiently corroborated
with the medical evidence on record.
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
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.
statements in the First Information Report is by and large are corroborated
with the evidence of the witnesses, and therefore, 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.
find no merit in these appeals and the same are dismissed accordingly.
(Dr. Mukundakam Sharma)