REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1590 OF 2007

Akhtar & Ors. …. Appellants

versus

State of Uttaranchal ….

Respondent

JUDGMENT

Dr. Mukundakam Sharma, J.

1.This 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.

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2.The 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

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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.

3.Leaving 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

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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 reports.

4.During 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

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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.

5.The 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.

6.The 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

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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.

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7.Aggrieved by the said decision of the High Court, the five appellants

have preferred the present appeal under Section 379 CrPC.

8.Before 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.

9.Another 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.

10.The 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

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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.

11.Admittedly, 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.

12.Undisputedly, 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

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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).

13.In 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 page 250, 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.

14.This court has taken the view in State of M.P. v. Mansingh, [2003

(10) SCC 414], at page 419 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

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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.

15.Though declared hostile by the prosecution, Radhey Shyam (PW-4),

an another eye witness who was the driver of the tractor on that day at

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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.

This independent 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.

16.It 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.

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Accordingly, the 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.

17.With 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,

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clearly establish the involvement of the accused appellant on the date

of occurrence.

18.In 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 earlier.

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].

19.In 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

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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.

…………………………..J.

(S.B. Sinha)

…………………………..J.

(B. Sudershan Reddy)

……………………………J.

(Dr. Mukundakam Sharma)

New Delhi,

April 9, 2009

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