& ANR. Vs. State of U.P.  INSC 454 (6 July 2010)
APPELLATE JURISDICTION CRIMINAL APPEAL NO.1223 OF 2004 SURAJ & ANR. ....
Appellants Suraj and Hari Singh alongwith Shyam, Gulab and Baladin
were put on trial for offence under Sections 302/149, 147 and 148 of the Indian
died during the pendency of the trial. All of them were convicted for offence
under Section 302/149 of the Indian Penal Code and sentenced to undergo
imprisonment for life by Judgment and Order dated 8th December, 1981 passed by
the III Additional Sessions Judge, Hamirpur in Sessions Trial No. 201 of 1980.
Shyam, Gulab and Appellant Suraj were also 2 convicted under Section 148 of the
Indian Penal Code and each of them sentenced to undergo two years rigorous
imprisonment. Appellant Hari Singh was also found guilty under Section 147 of
the Indian Penal Code and sentenced to undergo rigorous imprisonment for one
year. All the sentences were directed to run concurrently. All the convicted
persons including the appellants herein preferred appeal before the Allahabad
High Court which was registered as Criminal Appeal No. 3024 of 1981. Convicts Shyam
and Gulab died during the pendency of appeal and their appeal had abated.
However, appeal preferred by the appellants was dismissed by the Division Bench
of the High Court by its Judgment and Order dated 12th May, 2004 passed in
Criminal Appeal No. 3024 of 1981.
Aggrieved by the said, appellants have preferred this Appeal by
Special leave to this Court.
According to the prosecution, on 29th March, 1980 at about 10
A.M., Smt. Sirawan (PW.1) along with her minor 3 daughter, Dhanti (PW.3) and
her husband Mansha (deceased) alongwith one Chitwa Chamar were going to harvest
masur crop belonging to the deceased. When they were passing through a lane and
came near Gurwahi Bakhari of Tulsi Dass, all the accused persons variously
armed arrived there.
Suraj was alleged to have been armed with farsa whereas Hari Singh was armed
with lathi. Prosecution had further alleged that accused Baladin abused Mansha
and exhorted to kill him. At this, all the accused persons including the
appellants assaulted Mansha with farsa, lathi etc. On alarm being raised by
Smt. Sirawan (PW.1), Dhanti (PW.3) and Chitwa Chamar, villagers including
Swamidin (PW.2) collected at the spot and being challenged by them, the accused
persons fled away from the place of occurrence. Smt. Sirawan (PW.1), Dhanti
(PW.3) and Swamidin (PW.2) witnessed the accused persons including the
appellant Suraj and Hari Singh assaulting Mansha with lathi and Farsa.
According to the prosecution, while the informant, Smt. Sirawan (PW.1) was
making arrangements of bullock cart for shifting her injured husband-Mansha, he
Appellants denied to have committed the offence. From the trend of
the cross-examination, their defence is of false implication. In order to bring
home the charge, the prosecution had examined altogether six witnesses out of
whom Smt. Sirawan (PW.1), Swamidin (PW.2) and Dhanti (PW.3) claimed to be the
eye-witnesses to the occurrence.
had also examined Dr. A.K. Srivastava (PW.6), the Medical Officer, who had conducted
post mortem on the dead body of Mansha on 30th March, 1980 at 10.30 A.M.
Trial Court, relying on the evidence of the eye-witnesses and the
doctor, held the appellants guilty as above which has been affirmed in the
Mrs. Shally Bhasin Maheshwari, learned counsel appearing on behalf
of the appellants raises a very short point.
submits that the doctor in his evidence has not stated about any injury
sustained by the deceased nor whispered about the cause of death. She also
points out that the post- 5 mortem report has neither been brought on record
nor proved or marked as an exhibit. It has also been pointed out that the
doctor has not stated anything about the nature of injury i.e.
or simple, sustained by the deceased. Not only this, according to Mrs.
Maheshwari, the doctor has been declared hostile by the prosecution itself and
was cross-examined. She also emphasizes that even in the cross-examination, the
prosecution has not elicited anything regarding the cause of death, nature of
injury and post-mortem report has not been proved. Accordingly, she submits
that appellants utmost can be convicted under Section 324 of the Indian Penal
Mr. Pramod Swarup, learned Senior Counsel appears on behalf of the
The aforesaid submission advanced by Mrs. Maheshwari is on the
basis of the materials in the paper book and at the first blush, we were
impressed by her submission. But the entire premise on which she based her
submission looked unusual to us and accordingly we examined the original 6
record. We find that Dr. A.K. Srivastava (PW. 6) had stated all the injuries
sustained by the deceased. In his evidence as also in the post-mortem report,
he has stated that the deceased had sustained sixteen ante-mortem injuries of
various kinds and descriptions i.e. contusion, abrasion, laceration, incised
& punctured wounds. Injury nos. 7,8,10 and 11 have been found to be
punctured wounds. Cause of death, according to the evidence of this witness as
also post- mortem report is haemorrhage and shock as a result of the aforesaid
anti-mortem injuries. He had also proved the post- mortem report and from the
record, it is evident that the same has been marked as Exhibit 12.
From what we have stated above, it is evident that Mrs. Maheshwari's
submission is un-founded on facts. True it is that PW.6 Dr. A.K. Srivastava has
been declared hostile but that itself shall not wipe out his entire evidence.
In his evidence he has given the details of the injuries sustained by the
deceased and the cause of death. Merely an erroneous opinion in regard to the
punctured wounds led the prosecution 7 to declare him hostile but this will not
dilute his other evidence if otherwise worthy of reliance. Merely the fact that
PW.6 Dr. A.K. Srivastava has been declared hostile, his entire evidence is not
wiped out and for the purpose of nature of injuries and the cause of death, his
evidence can be relied on.
Counsel for the appellants, then points that injury nos. 7,8,10
and 11, according to the doctor himself are punctured wounds and the weapon
alleged to have been used by the accused persons cannot cause punctured wounds.
According to her, eye-witnesses' account has not been corroborated by the
medical evidence and hence on this ground alone, the case of the prosecution
deserves to be rejected.
We do not find any substance in the submission of Mrs. Maheshwari.
The doctor who had conducted the post-mortem examination has been declared
hostile when he opined that injury nos. 7,8,10 & 11 as punctured wounds. He
had admitted that before giving the opinion, he had not measured dimensions
i.e. thickness or depth of the injuries. In view of the aforesaid, this opinion
of the doctor, which has no 8 foundation deserves to be ignored and has rightly
been ignored by the trial Court and the appellate Court.
Smt. Sirawan (PW.1) who happens to be the wife of the deceased
Mansha, Swamidin (PW.2), an independent witness and Dhanti (PW.3) daughter of
the deceased have clearly stated that it was the appellants along with other
accused persons who had assaulted the deceased with pharsa, lathi etc. The
doctor has found contusion and incised wounds on the person of the deceased.
Eye-witnesses' account are consistent and there is no material contradiction in
their evidence to discredit their truthfulness. In our opinion, the prosecution
has been able to prove its case beyond all reasonable doubts.
We do not find any merit in the appeal and it is dismissed
........................................J. ( G.S. SINGHVI )
........................................J. ( C.K. PRASAD )
July 6, 2010.