State Of U.P vs Shobhnath & Ors

Shobhanath and Others .... Respondents

JUDGMENT

Dr. Mukundakam Sharma, J.

1. This 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.

2. The aforesaid criminal case was registered on the basis of an

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

2 p.m. Ram Abhilakh Dubey later on succumbed to the injuries i.e. on

3.11.1981 at 8.30 p.m.

3. The 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.

4. On 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.

5. On 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

3 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 tried

6. During 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.

7. Dr. 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 7.15 p.m.

8. Dr. 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.

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9. The 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) were recorded.

10. The 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.

11. The 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.

12. The 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.

13. So far as accused Hansraj alias Hansoo is concerned, since he was

aged about 16 years, therefore the benefit of the Children Act, 1960 was

5 extended to him. He was not sentenced to jail and was directed to be in

Children Home.

14. Aggrieved 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.

15. Being 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 respective parties.

16. On 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

6 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.

17. The 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

7 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.

18. So 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

8 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.

19. It 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.

20. The 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.

21. In 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

9 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 misappreciation.

22. The 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.

23. PW-1, 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

10 cannot be said that there was any undue delay either in reporting the

incident to the police or taking the victim to the hospital.

24. The 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 Report.

25. The 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.

11 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.

26. So 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.

27. We 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

28. In 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

12 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.

29. So far as respondent No. 5 (Hansraj) is concerned, the order of the

Trial Court is restored.

................................J. [Dr. Arijit Pasayat]

.................................J. [Dr. Mukundakam Sharma]

New Delhi, May 8, 2009

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