State of Uttar Pradesh Vs.
Sheo Sanehi & Ors  Insc 617 (6 October 2004)
B.N.Agrawal & A.K.Mathur
All the eight respondents were convicted by the trial court under Sections
302/149 of the Penal Code and sentenced to undergo imprisonment for life.
Ayodhya Prasad (respondent No. 2) was further convicted under Section 147 of
the Penal Code and sentenced to undergo rigorous imprisonment for a period of
six months whereas the other respondents under Section 148 of the Penal Code
and each one of them was sentenced to undergo rigorous imprisonment for a
period of one and half years. The sentences, however, were ordered to run
concurrently. On appeals being preferred by the respondents, the High Court of
Allahabad acquitted them of all the charges.
Prosecution case, in short, was that seven months prior to December, 1977,
one Sant Saran, father of accused Santosh Kumar, was murdered in which Debi
Shanker and Rakesh @ Chhotey, both sons of Devi Din Pandey were made accused in
which case bail was granted to both the aforesaid accused persons which
infuriated Santosh Kumar. On 20th December, 1977, in the morning, Sushil Kumar
(PW 1) came to the house of his maternal grandfather Devi Din Pandey for
borrowing oxen to get his plots ploughed and found that his maternal
grandmother Smt. Gorha Devi (PW 4) and his maternal grandfather's brother,
Promod Kumar (PW 3), were enjoying fire at the door of Devi Din Pandey whereas
Devi Din and his two sons, namely, Debi Shanker and Rakesh @ Chhotey were
cutting fodder and Vinod Kumar, elder brother of Promod Kumar (PW 3) was
milching the cow. At 7.30 a.m., all the respondents, excepting Gur Bax, who
were related to each other, came there armed with guns, country made pistols,
farsa, barchhi and lathi.
Upon arrival, Ayodhya Prasad (respondent No. 2) exhorted other accused
person to kill the enemies, namely, Devi Din, Debi Shanker and Rakesh @
Chhotey. Respondent No. 5 Santosh Kumar, son of Sant Saran, fired at Devi Din,
respondent No. 1 Sheo Sanehi fired at Debi Shanker and respondent No. 8 Bhagwati
fired at Rakesh from their respective guns whereas respondent No. 3 Gur Bax
fired at Debi Shanker. Respondent No. 4 Santosh Kumar son of Govind Prasad
fired at Rakesh from his country made pistol. Thereupon respondent No. 6 Deo
Narain assaulted Devi Din Pandey and Debi Shanker by farsa and respondent No. 7
Ram Asray assaulted them with barchhi whereas respondent No. 2 Ayodhya Prasad
assaulted them with lathi. All the three injured persons, namely, Devi Din
Pandey, Debi Shanker and Rakesh @ Chhotey fell down and succumbed to their
injures on the spot. Upon halla being raised by Sushil Kumar (PW 1), villagers
Asharfi, Babbu and Hira Lal came to the place of occurrence and when the
accused persons were challenged, they went away giving out threats. Thereupon,
Sushil Kumar (PW 1), after covering a distance of five miles, lodged the first
information report on the same day at 11.30 a.m. at Ghatampur police station
stating the aforesaid facts disclosing therein names of all the respondents.
Police after registering the case took up investigation and upon completion
thereof submitted chargesheet, on receipt whereof the learned magistrate took
cognizance and committed all the eight respondents to the court of Sessions to
Defence of the accused persons was that they were innocent, no occurrence,
much less the occurrence alleged, had taken place and the three deceased
persons were done to death in the dead of night and nobody had seen the
occurrence, but the accused persons have been falsely roped in to feed fat the
old grudge. Accused Sheo Sanehi and Santosh Kumar, son of Govind Prasad, took
the plea of alibi.
During trial, the prosecution examined seven witnesses, out of whom,
informant Sushil Kumar (PW 1), Promod Kumar (PW 3) and Smt. Gorha Devi (PW 4)
claimed to be eyewitnesses of the alleged occurrence. Ram Shankar Shukla (PW 2)
is the police officer who drew up the first information report, Ratan Singh (PW
5) is the investigating officer and Devi Prasad Mishra (PW 6) is the constable
who took the dead bodies for postmortem examination whereas Dr. S.K.Govil (PW
7) is the doctor who conducted postmortem examination on the dead bodies of all
the three deceased persons. Apart from the witnesses, several documents were
exhibited on behalf of the prosecution. Defence examined several witnesses in
support of the plea of alibi of respondent No. 1 Sheo Sanehi and respondent
No. 4 - Santosh Kumar son of Govind Prasad to the effect that they were taken
into custody in connection with different cases few days before the date of
alleged occurrence and on the date and at the time of occurrence, they were in
Apart from the evidence of defence witnesses, the defence has adduced
documentary evidence as well. Upon conclusion of trial, the learned Additional
Sessions Judge convicted the respondents, as stated above, but on appeals being
preferred by them, the High Court recorded their acquittal.
Hence, the present appeals by special leave by the State of Uttar Pradesh.
It may be stated at this stage that during the pendency of these appeals,
respondent No. 2 Ayodhya Prasad and respondent No. 3 Gur Bax died, as such
appeals against them abated and this being the position, we are required to
consider the same on merits in relation to the remaining six respondents.
Learned counsel appearing on behalf of the appellant State in support of the
appeals submitted that upon perusal of the order of acquittal rendered by the
High Court, it would appear that the same was perverse as it has reversed the
order of conviction recorded by the trial court only upon three grounds, viz.,
(I) Three eyewitnesses, namely, Sushil Kumar (PW 1), Promod Kumar (PW 3) and
Smt. Gorha Devi (PW 4) were related to the members of the prosecution party and
inimical to the accused persons; (II) medical evidence did not fit in with the
time of occurrence disclosed by the prosecution as stomach of the deceased was
found empty; and (III) plea of alibi of accused Sheo Sanehi and Santosh Kumar,
son of Govind Prasad, was substantiated. On the other hand, learned counsel for
the respondents submitted that the view taken by the High Court was not only
possible one but the same was a reasonable view, as such no interference by
this Court is called for.
First we proceed to consider the medical evidence. Dr. S.K.Govil (PW 7)
conducted the postmortem examination on the dead body of deceased - Devi Din on
21st December, 1977 at 3.00 p.m. and found the following injuries on his person
1. Incised wound 1<" x ?" x scalp deep on the upper occipital
region. Margins were clean cut. Hair were also cut.
2. Incised wound 1" x <" x muscle deep on the right fore head,
about =" above the right eye brow. Margins were clean cut.
3. Three abraded contusions in the area of 3" x 2 " on back of
4. Gun short wound 1" x 1" x chest cavity deep on the left side
chest, lower axillary region in mid axillary line in 6th inter costal space.
Margins were blackened. It was wound of entry.
5. Seven gun shot wounds in area of 5" x 3" chest cavity deep all
communicating with injury No. 4, each measuring ?" x <".
6. Gun shot wound ?" x <" x bone deep on the upper part right
On internal examination, the doctor found 6th, 7th and 8th ribs fractured on
the right side. Both pleuras were punctured through and through. Right lung was
punctured by gun shot through and through. Left lung was also punctured by gun
shot through and through under injury No. 4. Heart was punctured by gun shot
through and through. Large and small intestines were half full. According to
the doctor, death was caused due to shock and haemorrhage as a result of gun
shot injuries. Doctor also recovered one pellet from right axilla and one
wadding piece from right lung.
Likewise, when PW 7 conducted the postmortem examination on the same day at
4.00 p.m. on the dead body of Debi Shanker, aged 26 years, he found following
injuries on his person:-
1. Gun shot wound 1" x >" x chest cavity deep on the left side
of chest interior to axilla line. Margins were blackened.
It was a wound of entry.
2. Five gun-shot wounds in an area of 3" x 2" on the front of left
side chest communicating with injury No.1. It was wound of exit.
3. Stab wound 1" x ?" x abdominal cavity deep on the front of
epigastic region. Margins were clean cut.
4. Six abraded contusion in an area of 4" x 3" left side of
abdomen, 3" left to umbilicus.
5. Abraded contusion 1=" x <" on the right side of abdomen,
5" lateral to umbilicus.
6. Three abraded contusion in an area of 1" x =" on the left side
of chest just below injury No. 2.
7. Four gun-shot wound, in an area of 2"x1=" on front right
shoulder. These injuries were chest cavity deep.
8. Five gun shot wounds on right side back upper part in an area of 5"
x 3". They were exit wound of injury No. 7.
9. Incised wound =" x =" x muscle deep on right side face below
10. Gun-shot wound of entry x >" x =" x shoulder deep on the
back left shoulder outer part.
11. Gunshot wound entry >" x ?" x left elbow.
12. Nine gun shot wound of exit in an area of 2" x 1=" on the back
of left elbow.
13. Incised wound =" x ?" x muscle deep on the chin.
14. Two abraded contusion =" x ?", =" x <" on the
left thigh upper part.
On the internal examination, the doctor found 2nd, 3rd, 4th, 5th and 6th ribs
on the left fractured. Both pleuras were punctured by gun shots. Both lungs
were punctured through and through by pellets. Pericardium and heart were also
punctured through and through by pellets. Large and small intestines were half
full. In the opinion of the doctor, the death was caused due to shock and
haemorrhage as a result of the aforesaid injuries. Doctor also recovered some
wadding pieces and number of pellets from the body of the deceased.
Thereafter, PW 7 conducted postmortem examination on the dead body of Rakesh
@ Chhotey aged 23 years on the same day at 5.40 p.m. and found the following
injuries on his person : - 1. Gun shot wound 2" x 1" x neck deep on
left side of neck.
Margins were blackened and scorched. It was wound of entry.
2. Six gun shot wounds of entry each measuring ?" x ?" x chest
cavity deep on left side of chest. 8" below axilla, in an area of 2"
x 1=". Margins were blackened.
3. Four gun shot wounds of exit in an area of 2" x 1" each
measuring ?" x ?". Injuries were communicating with injury No. 2.
4. Gun shot wound of entry =" x ?" x bone deep on the right fore
On the internal examination, the doctor found right clavicle fractured.
5th, 6th ribs of the left side were also fractured. Pleura and both lungs
were punctured by pellets. Larynx, trachea were also punctured by pellets.
Stomach was empty. The large and small intestines were half full. In the
opinion of the doctor, the death had been caused due to shock and haemorrhage,
as a result of the aforesaid injuries. The doctor also recovered some pellets
and two wadding pieces from the body.
In the opinion of the doctor, the injuries caused to the three deceased
persons were sufficient to cause death in the ordinary course of nature and
death was caused within a period of 30 to 36 hours from the time of postmortem
examination. Dr. S.K.Govil (PW 7) categorically stated in his evidence that
death might have been caused at about 7.30 a.m. According to the finding of
doctor referred to above, as would appear from postmortem report, stomach of
deceased Rakesh @ Chhotey, aged 23 years, was empty.
In this connection, reference may be made to Modi's Medical Jurisprudence
& Toxicology, 22nd Edition, at pages 246 and 247 wherein it has been noted
that the conditions producing changes vary so much in each individual case that
only a very approximate time of death can be given.
According to Modi, in addition to this, the time of death can be ascertained
to some extent from the contents of the stomach, bladder and the intestines and
rate of emptying of stomach varies in healthy persons which is dependent on the
consistency of food; motility of the stomach; osmotic pressure of the stomach
contents; quantity of food in the duodenum; surroundings in which food is
taken; emotional factors; and residual variations. The learned author opined
thus that the time varies in a man from 2.5 6 hours. The aforesaid opinion of
the learned author in his famous treatise has been noticed by this 1995 Suppl.
(1) SCC 80, at pages 131 para 88 wherein it was observed that as the deceased
was a young boy of 12 years, his power of digestion must be assumed to be quick
and strong, therefore, if the stomach at the time of postmortem was found to be
empty, it was but natural.
In the present case, it is the prosecution case and evidence that at 7.30 in
the morning when other members of prosecution party were warming up near the
fire and milching the cow, three deceased persons were cutting the fodder for
being given to the cattle in the morning and the possibility of their taking
the breakfast around 5.30 in the morning before starting the work is but
natural and as Rakesh @ Chhotey, aged 23 years, was a healthy young boy at the
prime of his youth might have digested the food within two hours as his power of
digestion must be quick and strong due to which stomach was found empty. Thus,
the finding of the doctor in the postmortem report that the stomach of Rakesh @
Chhotey was found empty at the time of postmortem examination was but natural
and cannot create any doubt in relation to the veracity of the prosecution case
that occurrence had taken place at 7.30 a.m. on 20th December, 1977 and
consequently, the High Court was not justified in throwing out the prosecution
case and rejecting ocular version of the occurrence disclosed by the witnesses,
more so when the medical evidence supports the prosecution case of assault by
Apart from the medical evidence, the prosecution case is supported by the
objective findings of the police. The investigating officer Ratan Singh (PW 5)
when visited the place of occurrence found bloodstained earth inside the
bhusaura (a store room of cattle fodder) where all the three deceased persons
were working on the fodder cutting machine at the time of the alleged occurrence.
He further found cut fodder in the said room with stains of blood thereon,
seized the same and sent it to the chemical examiner. The Serologist reported
that the same contained human blood. Apart from that, the investigating officer
found the signs of burning of fire at the door of deceased Devi Din Pandey, as
would appear from the site plan, Ex. Ka-22, recovered four empty cartridges and
three pellets from the place of occurrence and prepared seizure memos therefor.
Thus, the objective findings of the investigating officer fit in with the
prosecution case that the occurrence had taken place at the place where the
three deceased persons were working on fodder cutting machine at the time of
the alleged occurrence.
As far as motive for the murder is concerned, from the evidence of Sushil
Kumar (PW 1), it would appear that all the accused persons, excepting accused
Gur Bax, were related to each other. Accused Santosh Kumar is son of Sant Saran
who was murdered for which deceased Debi Shanker and Rakesh @ Chhotey were made
accused and were granted bail prior to the date of the alleged occurrence.
Accused Ayodhya Prasad is grandfather of accused Santosh Kumar, son of Sant
Saran, and accused Ram Asray whereas accused Sheo Sanehi and Deo Narain are
sons of accused Ayodhya Prasad. Accused Bhagwati is cousin of aforesaid accused
Santosh Kumar as mothers of both of them are sisters. Accused Santosh Kumar son
of Govind Prasad is grandson of brother-in-law of accused Ayodhya Prasad.
Accused Gur Bax is friend of accused Ram Asray and was on visiting terms
with him. PWs 1, 3 and 4 have categorically stated that as father of accused
Santosh Kumar was murdered for which deceased Debi Shanker and Rakesh @ Chhotey
were accused and before the date of the alleged occurrence, they were granted
bail, accused Santosh Kumar was having a grudge with the deceased persons which
led to the commission of the present crime.
Coming to the ocular version of the occurrence, the prosecution has relied
upon the evidence of three eyewitnesses, viz., PWs 1, 3 and 4. PW 1 has
supported the prosecution case in all material particulars which is consistent
with his subsequent statement made before the police. The ground of attack to
his evidence was that he was a resident of village which is situated at a
distance of 40 kilometers from the place of occurrence and he had no occasion
to be present at the place of occurrence. He stated that his mother was adopted
by one Smt. Mahadei of village Siromanpur where the occurrence had taken place,
he was born in village Siromanpur and was residing in the said village with his
mother - Smt. Bishandei since his childhood inasmuch as he was looking after
cultivation of her lands. The fact that his mother was adopted by Smt. Mahadei
would be apparent from the registered Will dated 11th August, 1977 (Ex. Ka 52)
executed by Smt.
Mahadei in favour of his mother showing that she was her adopted daughter
and was residing with her. Ex. Ka-50 and Ex.Ka-51 are the extracts of khatauni
and khasra in which name of Bishandei, mother of this witness, is recorded
along with Smt. Mahadei in relation to the agricultural lands. That apart, Exs.
13,14 and 15 are transfer certificates, high school certificate and mark sheet
in relation to this witness which show that he had passed out from a school
situated in village Siromanpur. Apart from the aforesaid documents, invitation
card Ex. 16 has been filed to show that the sacred thread ceremony of PW 1 as
well as his younger brother - Subhendu Kumar was held in the year 1975 in
village Siromanpur. Besides that, letters - Exs. 17 to 20 have been filed to
show that he had received the same at his address in village Siromanpur. Ex.
Ka-47 is gun licence in the name of PW 1 in which he was shown to be a resident
of village Siromanpur. These facts clearly show that PW 1 was resident of
village Siromanpur, as such his presence at the place of occurrence and time of
occurrence cannot be doubted.
So far as PWs 3 and 4 are concerned, PW 3 is nephew of deceased Devi Din
whereas PW 4 is widow of the said deceased, as such they are natural witnesses
and their presence at the alleged place of occurrence cannot be doubted. The
names of these two witnesses were disclosed in the first information report
itself and they supported the prosecution case in all material particulars in
their statements made before the police as well as in court and no infirmity
could be pointed out in their evidence, excepting that they were related to the
deceased persons and inimical to the accused. It is well settled that merely
because a witness is related to the prosecution party and inimical to the
accused persons, his evidence cannot be discarded if the same is otherwise
trustworthy. In the case on hand, we do not find any infirmity whatsoever in
the evidence of PWs 1, 3 and 4, as such it is not possible to disbelieve them,
especially in view of the fact that their evidence is supported by medical
evidence as well as objective findings of the investigating officer, but the
High Court has committed a serious error in discarding their testimonies on
In support of the plea of alibi of accused Sheo Sanehi and Santosh Kumar,
son of Govind Prasad, the defence examined several witnesses. So far as accused
Santosh Kumar is concerned, the two Assistant Jailors, namely, Mani Kant Singh
(DW 1) and Ram Raj Tripathi (DW 3) proved entry of the jail register. In their
evidence, they admitted that when this accused was taken to Unnao jail on 17th
December, 1977 and released on 24th December, 1977, his identification marks
were noted down in the original gate book and register of the said jail, but
most of the identification marks noted down in the aforesaid registers of jail
were not traceable on the person of this accused. They further stated that
though prominent identifying marks were visible on the body of this accused,
but the same were not noted down in the register. That apart, this accused is
said to have been arrested by Radhey Shyam Gupta (DW 4) and Raj Kumar Pandey
(DW 6) and entry to that effect was made in the crime register duly maintained
but the trial court, after threadbare discussion of evidence and taking into
consideration all the pros and cons of the matter, has come to the conclusion
that the entries therein were fabricated. Learned counsel for the respondents
could not point out any infirmity in findings of the trial court on this score.
This being the position, we are of the view that the trial court was quite
justified in holding that this accused set up a false plea of alibi, but the
High Court was not justified in reversing the findings in this regard and that
also without considering discrepancies in the evidence adduced on behalf of the
defence in relation to the plea of alibi.
So far as the plea of alibi of accused Sheo Sanehi is concerned, the
prosecution examined Pyare Lal Gupta (DW 8) and Kanhya Lal (DW 10).
DW-8 is a constable who claimed to have arrested the accused on 19th December, 1977 at 9.45 p.m. at Unnao railway station. He deposed in court that the
only ground of arrest of accused Sheo Sanehi was that he was found crossing the
railway line. This witness during the course of cross-examination had accepted
that, excepting this accused, nobody else was ever arrested for crossing the
railway line. DW-10 is a person who stated that DW-8 brought this accused to
the Government Railway Police Station at Unnao from where Ramjas Yadav (DW 9)
took him to jail. DW-10 admitted in his evidence that the person who was
brought to the police station and taken therefrom by DW-9 for being lodged into
jail was not baldheaded whereas this accused was baldheaded. After taking into
consideration these infirmities, the trial court did not accept the plea of
alibi of this accused, but the High Court, without considering discrepancies in
the evidence adduced by the defence in this regard, reversed the finding and
accepted the plea of alibi set up by the accused. We have no difficulty in
holding that the trial court was quite justified in rejecting the plea of alibi
of the aforesaid two accused persons and the High Court has committed error in
accepting the same. For the foregoing reasons, we are of the view that the
prosecution has succeeded in proving its case beyond reasonable doubt and the
High Court was not justified in recording order of acquittal which suffers from
the vice of perversity and is consequently liable to be interfered with by this
Court in exercise of powers under Article 136 of the Constitution.
Accordingly, the appeals against respondent No. 2 Ayodhya Prasad and
respondent No. 3 Gur Bax are held to have abated in view of the fact that they
died during the pendency of appeals whereas appeals filed in relation to other
respondents are allowed, the order of acquittal rendered by the High Court in
their favour is set aside and convictions and sentences recorded by the trial
court against them are restored. Bail bonds of respondent No. 1 Sheo Sanehi,
respondent No. 4 Santosh Kumar, son of Govind Prasad, respondent No. 5 Santosh
Kumar, son of Sant Saran, respondent No. 6 Deo Narain, respondent No. 7 Ram
Asray and respondent No. 8 Bhagwati, who are on bail, are cancelled and they
are directed to be taken into custody forthwith to serve out the remaining
period of sentence for which compliance report must be submitted to this Court
within a period of one month from the date of receipt of this order by the