Suraj & Anr vs State Of U.P

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.

Prosecution 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.

5. 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 appeal.

6. Mrs. Shally Bhasin Maheshwari, learned counsel

appearing on behalf of the appellants raises a very short point.

She 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.

grievous 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 Code.

7. Mr. Pramod Swarup, learned Senior Counsel appears on

behalf of the State.

8. 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.

9. 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.

10. 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.

11. 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.

12. 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 alongwith 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.

13. We do not find any merit in the appeal and it is

dismissed accordingly.

........................................J. ( G.S. SINGHVI )

........................................J. ( C.K. PRASAD ) New Delhi, July 6, 2010.