Akhtar & Ors. Vs.
State of Uttaranchal  INSC 708 (9 April 2009)
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1590 OF 2007
Akhtar & Ors. .... Appellants versus State of Uttaranchal ....
statutory appeal arises out of the final judgment and order dated 18.07.2007
passed by the Division Bench of the High Court of Uttaranchal by which the High
Court allowed the appeal filed by the State of Uttaranchal and convicted all
the appellants herein under Sections 148, 302/149, 307/149 and Section 324/149
of the Indian Penal Code (in short "the IPC") and sentenced them to
undergo rigorous imprisonment for life by setting aside the order of acquittal
passed by the trial court.
prosecution story, in brief, is that on 13.05.1987, at about 10.00 AM,
complainant Jamil Ahmad (PW-2) along with his brothers Asgar and Shakil (both
deceased), and nephew Mobin (PW-3), were ploughing their field, bearing Khasra
No. 967, situated in Village Beljuri within the limits of Police Station,
Kashipur. Their tractor was being driven by driver Radhey Shyam (PW-4). They
were in litigation over possession of said field with accused-Alla Bux and
others. Stay order had also been obtained by them regarding the same. It is
alleged that on account of such running feud between them, Alla Bux and his
associates were inimical to the complainant (Jamil Ahmad) and his brothers and
that on aforesaid date and time when the plot was being ploughed, accused -
Alla Bux, Akhtar, Mohd. Umar, Nuru, Rais alias Gabru, Yamin, Yasin and Amir
Bux, armed with deadly weapons - pistol, tabals (a sharp edged weapon), knives
and lathies, reached in the field. Accused Alla Bux exhorted his companions
whereupon all the accused/appellants started giving blows with the weapons they
were armed with, on the complainant, his brothers and nephew. The
accused/appellant Akhtar, who wielded a country made pistol, fired upon them
and wounded Shakil (one of the deceased) and Mobin (one of the injured). In the
incident all of them, namely Asgar, Shakil, Jamil Ahmad and Mobin sustained
severe injuries. On account of the injuries thus sustained Asgar and Shakil
died on the spot itself. Asgar (another deceased) and Jamil Ahmad (another
injured) also received injuries of sharp edged weapons. On raising alarm by
Jamil Ahmad and others, many other persons from nearby place reached at the
spot whereupon accused/appellant ran away towards river Dhela.
the dead bodies of Asgar and Shakil at the spot, Jamil Ahmad along with Mobin
went to Kashipur. The written First Information Report (in short "the
FIR") was got scribed by one Anwar Hussain on dictation of Jamil Ahmad
(PW-2). Jamil Ahmad then went to Police Station, Kashipur and lodged the said
FIR with the police. The police registered the FIR being Crime No. 160 of 1987
on 13.5.1987, at about 11.20 AM against all the eight accused persons relating
to offences punishable under Sections 147, 148, 149, 307 and 302 IPC and
thereafter started investigation. Shri R.S. Lal Sharma, Sub-Inspector (PW-9)
was entrusted with the investigation in the matter. He accompanied by Kalyan
Singh (PW-7), another Sub- Inspector, reached the spot. The dead bodies were
taken by the police into their custody. The dead bodies were sealed and sent
for post mortem examination. The police prepared inquest reports, Police Form
No. 13, sketch of the dead bodies, sketch map of the spot and the letters
requesting the Medical Superintendent, for post mortem examination of the dead
bodies. Police also collected the unstained soil and blood stained soil from
the place of incident along with empty shells of cartridges as well as live
cartridges and duly sealed the same on the spot and prepared memorandums.
Meanwhile, on the same day, i.e. on 13.5.1987 injuries on the person of Jamil
Ahmad (PW-2) and Mobin (PW-3), were got examined in L.D. Bhatta Civil Hospital,
Kashipur, at about 12.00 noon and their injury reports were prepared by Medical
Officer on duty. Post mortem examination on the dead bodies of Asgar and Shakil
was conducted on the next day i.e. 14.05.1987 at 10.00 AM and 10.30 AM
respectively by Dr. D.K. Lumba, who prepared the post mortem examination
investigation, the witnesses were interrogated and all the accused were
arrested. From the possession of accused/appellant Akhtar, a pistol, used in
the crime, was recovered. The said country made pistol along with empty shells
of cartridges, recovered from the spot itself by the police, were sent to
Ballistic Expert, who gave its report supporting the prosecution case. On
completion of investigation the police submitted charge sheet on 30.05.1987
against all the eight accused/appellants, namely, Akhtar, Mohd. Umar, Nuru,
Rais alias Gabru, Yamin, Yasin and Amir Bux and Alla Bux.
Addl. Chief Judicial Magistrate, Kashipur took cognizance of the case and
committed the case to the court of Sessions, Nainital. The learned Sessions
Judge, Nainital after hearing the prosecution and the defence, framed charges
on 3.5.1988. Whereas the accused-Akhtar was charged with offences under
Sections 148, 302, 307 and 324 read with Section 149 IPC, the co-accused Mohd.
Umar, Nuru, Rais alias Gabru, Yamin and Yasin were charged with offences under
Sections 148, 302/149, 307/149 and 324/149 IPC. The co-accused Amir Bux and
Alla Bux were, however, charged with offences under Sections 147, 302/149,
307/149 and 324/149 IPC.
trial court by its order dated 20.06.1989 held that the charges framed against
the accused were not proved beyond reasonable doubt and consequently acquitted
them of all the charges framed against them. Aggrieved by this order the State
filed an appeal before Allahabad High Court on 29.09.1989 in which leave was
granted under Section 378 (3) of the Code of Criminal Procedure, 1973 (in short
"the CrPC") on 21.05.1992. However, the said appeal came to be
transferred for its disposal to the High Court of Uttaranchal at Nainital under
Section 35 of U.P. Reorganization Act, 2000. It is also to be mentioned at this
stage that accused Akhtar, Yasin and Alla Bux died during the pendency of the
appeal in the High Court and, therefore, the said appeal stood abated so far
those three accused were concerned. The High Court of Uttaranchal allowed the
appeal preferred by the State and set aside the judgment and order of the trial
court dated 23.06.1989 and ordered for conviction of all the surviving five
accused. Mohd. Umar, Nuru, Rais alias Gabru, Amir Bux and Yamin was convicted
under Sections 148, 302 r/w 149, 324 r/w 149 IPC. Considering relevant factors
on the question of sentence, Mohd.
Umar, Nuru, Rais
alias Gabru, Amir Bux and Yamin was given rigorous imprisonment for a period of
one year u/s 148 IPC;
imprisonment for life
u/s 302 r/w 149 IPC; rigorous imprisonment for a period of five years u/s 307
r/w 149 IPC; and rigorous imprisonment for a period of one year u/s 324 r/w 149
IPC. The appeal against accused Akhtar, Yasin, Allah Bux abated due to their
death during the pendency of the appeal in the High Court.
by the said decision of the High Court, the five appellants have preferred the
present appeal under Section 379 CrPC.
dwelling further into the matter, it would be pertinent to mention here that
the ante mortem injuries were found on the body of two deceased and injuries
were also found on the body of informant Jamil (PW2) and Mobin (PW3). The first
post mortem examination report, genuineness of which has been admitted by the
defence, discloses that autopsy was conducted on 14.05.1987 at 10.30 AM on the
dead body of Shakil by Dr. A.K. Lumba.
post mortem examination report, genuineness of which has also been admitted by
the defence, discloses that autopsy was conducted on the dead body of Asgar on
14.05.1987 at about 10.00 AM by Dr. A.K. Lumba. In the opinion of the Medical
Officer, both Shakil and Asgar died on account of shock and haemorrhage
resulting due to ante mortem injuries.
medical report with respect to the injuries caused to two eye- witnesses,
namely Jamil Ahmad and Mobin, genuineness of which has also been admitted by
the defence counsel, discloses that on 13.05.1987 at about 12.15 p.m., injuries
were found on the body of Jamil Ahmad (PW-2) by the Medical Officer who
examined the injured at L.D. Bhatt Civil Hospital, Kashipur. In the opinion of
the Medical Officer the injuries were fresh and simple in nature, caused by
sharp edged weapon. The same Medical Officer also examined PW-3, Mobin and
opined that four injuries were caused by some hard blunt object and two
injuries were caused by a fire arm and all the injuries were fresh in duration.
there is no dispute as far as the genuineness of the injury reports, post
mortem reports and also the genuineness of the Ballistic Expert's report is
concerned. As defence has already admitted the same no useful purpose would be
served to discuss those reports again.
it was a day light incident, the motive of accused was also established on
record. There is concurrent finding of the trial court as well as of the High
Court that there did exist enmity between the complainant party and the accused
regarding ownership and possession on Khasra No. 967. Jamil Ahmed (PW-2) and
Mobin (PW-3) in their deposition have stated that on account of dispute and litigation
with regard to Khasra No. 967 the accused bore enmity against them
(complainant) and the accused were on the look out to kill them (complainant).
the case of Krishan v. State of Haryana, [2006 (12) SCC 459], this Court has
taken the view that if the prosecution case supported by two injured
eye-witnesses and if their (injured eye-witnesses) testimony is consistent
before the police and the court and corroborated by the medical evidence, their
testimony cannot be discarded. Similarly, in the case of Surender Singh v.
State of Haryana, [2006 (9) SCC 247], at, this Court has opined that the testimony
of an injured witness has its own relevancy and efficacy. The fact that the
witness was injured at the time and in the same occurrence lends support to the
testimony that the witness was present during occurrence and he saw the
happening with his own eyes.
court has taken the view in State of M.P. v. Mansingh, [2003 (10) SCC 414], at that
the evidence of injured witnesses has greater evidentiary value and unless
compelling reasons exist, their statements are not to be discarded lightly. It
was contended by the appellant that the testimony of Jamil Ahmed (PW-2) and
Mobin (PW- 3) cannot be relied on as these two eye witnesses were allegedly
highly interested witnesses and were related to the deceased. In our considered
view, merely because the witnesses in question were related to the deceased
cannot be a ground for non-acceptance of their evidence, which otherwise was
found to be trustworthy. It is true that these two witnesses are related to the
deceased but at the same time one cannot lose sight of the fact that these two
witnesses were also injured witnesses. It is extremely difficult to believe
that the injured witnesses who themselves got injured and whose close relatives
lost their lives would shield the real culprits and name somebody else only due
to some enmity. The defence had ample opportunity to cross-examine these two
injured eye witnesses but records show that no suggestions were put to them as
to how they received the injuries, mentioned in the medical reports. In fact,
various documents filed by the defence with respect to litigation among
themselves itself give the unmistakable impression that there was indeed motive
to attack the deceased and the injured witnesses.
declared hostile by the prosecution, Radhey Shyam (PW-4), an another eye
witness who was the driver of the tractor on that day at the place of
occurrence substantially corroborated the prosecution version to the extent
that on the date of occurrence at 10.00 AM he was ploughing field of the
deceased when some 7-8 persons reached there, he got frightened and ran away
from the place of occurrence.
witness has supported the date, time and place of the incident as deposed by
the two injured eye witnesses namely Jamil Ahmed (PW-2) and Mobin (PW-3).
Further, even if the recovery of the pistol has not been proved beyond
reasonable doubt, the testimony of the two injured eye witnesses, which is
quite consistent and has further been corroborated by the medical evidence,
cannot be disbelieved.
has been argued that non-examination of the concerned medical officers is fatal
for the prosecution. However, there is no denial of the fact that the defence
admitted the genuineness of the injury reports and the post mortem examination
reports before the trial court. So the genuineness and authenticity of the
documents stands proved and shall be treated as valid evidence under Section
294 of the CrPC. It is settled position of law that if the genuineness of any
document filed by a party is not disputed by the opposite party it can be read
as substantive evidence under sub-Section (3) of Section 294 CrPC.
post-mortem report, if its genuineness is not disputed by the opposite party,
the said post-mortem report can be read as substantive evidence to prove the
correctness of its contents without the doctor concerned being examined.
regard to the contention of semi-digested food being found in the stomach of
the deceased, it has been contended that both the deceased were fasting as it
was the month of holy Ramjan. So, it was argued that there could not have been
semi digested food in their stomach at 10.00 AM. We are unable to accept this
contention as it is common knowledge that during holy ramjan heavy food is
taken before sunrise. Jamil Ahmad (PW-2) stated that Shakil (deceased) had
taken `sahri' i.e. morning food taken by Muslims before sunrise on a fasting
day. Since the incident was of the month of May, there cannot be denial of the
fact that after a period of five hours, there could be some semi digested food
in the stomach of the deceased which has in fact been confirmed by the Doctor
conducting the post mortem examination. There might be some minor contradiction
in the prosecution version but the same would not render the trial fatal. The
evidences adduced in the present case, despite minor discrepancies, clearly
establish the involvement of the accused appellant on the date of occurrence.
Sarbul Singh and Others v. State of Punjab, [1993 Supp (3) SCC 678], where some
semi-digested food was found in the stomach of the deceased therein although
there was evidence that they had taken food immediately before the occurrence,
this Court held as under:
"6. We see
absolutely no reason to discredit the evidence of the three eyewitnesses whose
presence cannot be doubted.
Now coming to the semi-digested
food, it cannot be ruled out that the old lady might not have eaten anything
Merely because the
illiterate witnesses stated that they took their meals immediately before the
occurrence cannot by itself be a circumstance to discredit their evidence on
the basis of medical evidence regarding the presence of semi- digested food. It
is also clear from the textbooks on medical jurisprudence that the stomach
contents cannot be determined with precision at the time of death. As rightly
held by the High Court, the trial court grossly erred in basing its verdict
mainly on the nebulous medical observation."
This position of law
has been recently reiterated by this Court in Virendra @Buddhu & Anr. v.
State of U. P. [2008(15) SCALE 283].
view of the aforesaid discussion, we do not find any infirmity in the judgment
and order passed by the High Court. Accordingly, the appeal filed by the
appellants herein is dismissed. The High Court decision against each accused
i.e. Mohd. Umar, Nuru, Rais alias Gabru, Amir Bux and Yamin convicted under
Sections 148, 302/149, 307/149 and Section 324/149 IPC and sentenced to
rigorous imprisonment for a period of one year under Section 148 IPC,
imprisonment for life under Section 302/149 IPC, rigorous imprisonment for a
period of five years under Section 307/149 IPC and rigorous imprisonment for a
period of one year under Section 324/149 IPC, are hereby upheld. The sentences
awarded to them shall run concurrently.
(B. Sudershan Reddy)