[2009] 9 S.C.R. 398

SUBHASH CHANDRA & ORS.

STATE OF U.P. (Criminal Appeal No. 319 of 2008)

MAY 15, 2009

[S.B. SINHA AND DR. MUKUNDAKAM SHARMA, JJ.]

Penal Code, 1860 - ss. 3021149, 3241149, 3231149, 147 and 148 - Murder of one and injuries to two - Conviction by c courts below - Based on evidence of injured witness - On

appeal, plea of contradiction of the statements of the witnesses vis-a-vis FIR and Injury Report - Held: Contradictions of statements vis-a-vis FIR are not major and vital - Statements are corroborated by medical evidence - D Prosecution case proved - conviction upheld.

Courts below convicted all the appellants-accused u/ ss. 302/149, 324/149, 323/149 IPC. Two of the accused were further convicted u/ss. 147 and 148 IPC. Conviction

1= E was based on evidence of PW1 and 2, the injured witnesses. Hence the present appeal.

Appellants contended that conviction u/s. 302 IPC was not c, alled for, as the statements of the witnesses were in contradiction with the version in FIR and the F injury report; and that the weapons used being blunt shows lack of intention to kill, on the part of the accused.

Dismissing the appeals, the Court

HELD: 1. The statements in the First Information G Report is by and large are corroborated with the evidence of the witnesses, and therefore, there cannot be any doubt against the accused persons that they have, committed the offence. [Para 20] [409-E-F]

H 398

f;)UBH~SH CHANDRA & ORS. v. STATE OF U.P. 399 ..

2. A comparative reading of the injury reports of the A .., deceased, injured witnesses and one of the accused, and .. the post mortem examination report along with the statements of the witnesses and the statements made in the FIR, would indicate that the deceased received grievous injuries both with blunt and sharp-edged B weapons. There are stab wounds, incised wounds along with lacerated wounds, wtiich suggest that not only blunt weapon was used but sharp edged weapon was also

used. In fact, ttu~ injury report submitted by the doctor of the Primary Health Center had also stated that sh(!rp c weapon like ballam was also used. The evidence of the doctor who had conducted the post mortem examination .._ and given a report, reveals that his evidence is also of similar nature. It is, therefore, established that in the First Information Report the nature in which the incident had D occurred and the nature of the injuries received by the deceased and the injured were correctly recorded. The deceased has suffered multiple injuries. [Para 17] [408-

A-E]

3. The very fact that the accused were having blunt E

I - and sharp-edged weapons at the time of scuffle shows

r the intention of the accused persons to commit the offence so as to prevent the complainant party from ·-- watering their field. They had gone to the place of occurrence fully prepared and properly a:med with the F intention of causing death and bodily tnjuries to the deceased as also to the other injured persons. [Para 18]

[409-8-C]

4. So far as injuries received by one of the accused G is concerned, it has come in the statement of the -

deceased recorded by the investigating officer that he had snatched the lathi from the injured accused and wielded the same in defence and in the process, the accused sustained injuries. Similar statement was also

\ A made by PW1, which clearly proves and establishes that Ythe deceased had resisted the accused and tried to snatch his lathi, which probably had caused such minor injury to the accused. That fact also proves and establishes that none of the complainant party carried

B any weapon with them. They had not even carried a lathi

with them otherwise there would have been more injuries.

The contradictions in between the statements in the First )

Information Report and the statements recorded during the trial of PWs 1 anet 2 are not vital and major. The '. '

c statements of the aforesaid witnesses are also

sufficiently corroborated with the medical evidence on record. The contradictions, which have been sought to be pointed out, are found to be only minor in nature and ...._ it in no way affect the substratum of the prosecution case.

D [Para 18] [408-E-H; 409-A]

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 319 of 2008.

From the Judgment & Order dated 13.07.2007 of the High

E C9urt of Judicture at Allahabad in Criminal Appeal No. 883 of 1991. . ...

WITH -;

Criminal Appeal. No. 1086 of 2009. ...::._ F S.C. Maheshwari, R.K. Shukla, M.P.S. Tamar, Jabar Singh.

H.C. Kharbands (for Sandhya Goswami) and Jai Prakash Pandey for the Appellant.

Shiv Sagar Tiwari (NP) and Shrish Kumar Misra (NP) for G the Respondents.

I The Judgment of the Court was delivered by - Dr. MUKUNDAKAM SHARMA, J. 1. Leave granted.

2. These appeals, which are being disposed of by this

Judgment were filed by the appellants herein against the A Judgment and Order dated 13th July, 2007 passed by the High Court of Judicature at Allahabad in Crimi[lal Appeal No. 883 of 1991.

3. The appellants herein being aggrieved by the Judgment B and Order dated 25th April, 1991 passed by First Additional

District and Sessions Judge, Jaunpur had approached the High Court. The First Additional District and Sessions Judge, Jaunpur in S.T. No. 125of1985 convicted the appellants under sections 302 read with section 149 of the Indian Penal Code c (in short "the IPC") and sentenced them to undergo imprisonment for life, under section 324 read with section 149 IPC and sentenced to undergo one and a half year rigorous imprisonment (R.1.); and under section 323 read with section 149 IPC, to undergo one year's R.I. The appellants Thakur Din, D Sarju, Subhash Chandra, Sri Ram, Kedar Yadav, Hari alias Hari Ram Yadav and Ramesh Chandra have been further convicted under section 147 IPC and sentenced to undergo one year's R.I. and appellants Babu Ram and Sabhu alias Sahab din have been further convicted under Section 148 IPC and sentenced to undergo R.I. for one and a half years. It was E ,•

ordered that all the sentences would run concurrently.

 4. The aforesaid Sessions Case arose out of an occurrence, which took place on 22.08.1984 at about 9 p.m. in the field situated at the outskirts of village J:.medpur. The said F -; place is said to be located at a distance of about 3 miles from the Police Station, Sarpatha in the Jaunpur District. The First Information Report of the incident was recorde9 on the basis of a written report submitted by Jai Narain Yadav, son of Sahab Din alias Dahpel Yadav, resident of village -Junedpur, which G comes under the Sarpatha Police Station, Jaunpur. The said ... FIR was lodged on 23.08.1984 at 2.30 a.m. In the said First (

Information Report, the informant alleged that on 22.08. '\ 984 -i the informant, his father Sahbu alias Dehpel, his 'Chacha' Phool Chand and Shiv Shankar Tiwari from his village went to the field H , ...... . -

"""'

A for irrigating the wheat crop. The father of the complainant was watering the field and the complainant, his 'Chacha' Phool Chand and Shiv Shankar Tiwari were sitting on the 'mendh' of the field and were examining the flow qf the water in the field.

At about 9 p.m., the accused persons, Sahbu@ Sahabdeen B son of Jadgev, Subhash Chandr~ son of Jagdev, Baburam, Kedar, Ramesh Chandra and Hari s9n of Sahbdeen, Thakurdeen son of Jagdev, Sljbhash Chandra, SarjlJ, Shriram ).

son of Thakurdeen, !3aldv on of Alagu, Shiv Kumr. Ram . , Kumar on of Shubh Karan armed with lathi and ballam came c thre. The c9mplc:Jinant and Shiv $hankr, sitting on th~ mendh, switched on their torch. Thereafter, the accused gave a 'lalkara' and started assaulting the persons sitting on the Mendh and started saying that today these persons should be killed in order ') to solve their problem. The father of the complainant, who was

D watering the field, switched on his torch and ran away. Persons

.... near the field also arrived there. Shiv Shankar Tiwari, the complainant and Phool Chand Tiwc:iri sustained injuries. The accused - Sahabdeen and Baburam were armed with ballam and the rest of the persons were armed with lathis.

5. On the basis of the written report received, a criminal case was registered under sections 147, 148, 149, 307 and 323 IPC against the accused persons on 23.08.1984. The injured were taken for medical treatment to the Primary Health

Center, Suetha Kalan by the police, where, on 23.08.1984 at F night, they were medically examined. However, Phool Chand

Tiwari immediately died at the Primary Health Center itself. On receipt of the aforesaid report, the criminal case, which was registered earlier under Section 307 IPC was converted to a case under Section 302 IPC. The investigating officer thereafter

G started investigation into the matter and took the accused -

Sarjoo Yadav into custody. He also conducted inquest on the ' dead body. The doctor was requested to conduct post-mortem ...

examination upon which he conducted such examination and found as many as 18 anti-mortem injuries on the body of the

H deceased. So far as two other injured persons are concerned, ~

their medical reports were also prepared. The doctor opined A

.~ that the death of the deceased was caused due to shock and haemorrhage as a result of anti mortem injuries specifically injury nos. 6, 15 and 18.

6. The investigating officer after recording the statements B

,.., of the witnesses and collecting the evidence completed his investigation and submitted the charge sheet.

7. The trial court framed charges against the accused to which the accused persons pleaded not guilty. Consequently, c witnessas were examined on behalf of the prosecution.

8. The accused persons were examined under Section 313 of the Criminal Procedure Code and all of them in the course of recording of their statements denied having

> participated in the crime and stated that they have been falsely D implicated in the case. Sarjoo Yadav - accused alleged that he was also injured during the scuffle, which took place on 22.08.1984 and he produced the medical examination report which was given by the medical officer of the Primary Health

--··

Center where he found the following injuries on his body: . .

Lacerated wound 5 cm x .4cm, skin deep, bluish

' ' red in colour with zig zag margin, 11.5 cm above '

the tragus of right ear.

Contusion 7cm x .5 cm on right shoulder lateral F aspect, bleeding per right ear.

9. The aforesaid injuries were simple in nature and caused by blunt object about 12 hours in duration. The trial court

concluded the trial and after hearing both parties passed an G order of conviction against the appellants holding them guilty ~

of the charges framed against them. The trial court passed an order of sentence as stated hereinbefore. -

10. Being aggrieved by the aforesaid Judgment and Order of conviction and sentence, the appellants filed appeal before H

A the High Court of Allahabad. The High Court by the impugned Judgment and Order dated 13.07.2007 affirmed the order of ~· conviction passed against the accused persons by the trial court.

-:--- \.

11. Mr. S.C. Maheshwari and Mr. R.K. Shukla, learned senior counsel, appearing for the appellants placed several issues before us. They submitted that there are major contradictions between the statements made in the First Information Report and the statements of the witnesses, c particularly, with regard to nature of the incident. They also highlighted such contradictions in the statements of witnesses' vis-a-vis, injury report and submitted that the aforesaid contradictions are being very vital and major and no order of conviction could have been passed against accused -

appellants on the basis of such contradictory statements. It was also submitted by them that all the injuries were caused by blunt

weapon in the course of brawl and that there was no intention to cause death, and therefore, conviction under Section 302 IPC was excessive. It was also submitted that there was no motive of any of the accused persons to commit the crime, E which is also clear on a reading and analysis o{ tbe evidence of PWs 1 and 2, and therefore, there is total non-application of mind in passing the order of conviction against the accused/ appellants. They also submitted that the injuries received by PWs 1 and 2 are only superficial injuries, which are almost . ..t

F similar to one. received by one of the accused persons, and therefore, no conviction under Section 302 IPC was called for.

12. In order to appreciate the contentions of the counsel appearing for the appellants we have scrutinized the evidence

G on record. The occurrence took place on 22.08.1984 at about 9 p.m. The place of occurrence is admittedly the agricultural land ' of the complainant party. During the course of the aforesaid - incident Phool Chand Tiwari received grievous injuries whereas PWs 1 and 2 also injured when the accused persons, who were

H armed with ballam and lathis, attacked them. The Police Station -

is located at a distance of about 3 miles from the place of A

!.. occurrence, and therefore, a report of the incident at about 2.30 a.m. must be held to be prompt and without delay. After recording the First Information Report on the basis of the statement of the informant all the injured persons were sent to the Primary Health Center wherein a doctor examined them and B

~ following injuries were found in their bodies:

13. On the body of injured Jainarain, PW 1, following injuries was found:

1. 4 cm swelling just above the right elbow. c ...

14. On the body of injured Shiv Shankar Tiwari, PW 2, following injuries were found:

Lacerated wound 3.5 cm x 5 cm x skin deep, red D colour, on the head, near the right ear- 1 cm away.

Abrasion 1.3 cm x 0.5 cm on the right shoulder.

Contusion 5 x 4 cm on the left elbow.

Contusion 2 x 2 cm on the left sacroiliac joint c/o E

pain in left knee.

15. On the body of accused - Sarakpp Yadav, son of ....

Thakur Deen Yadav, following injuries were found: F 1.

Lacerated wound Scm x .4cm x skin deep bluish red in colour with zig zag margin 11.5 cm above the

,, J tragus of right ear.

Contusion 7 x .5cm on right shoulder lateral aspect . bleeding per right ear.

16. Immediately thereafter Phool Chand Tiwari died and

~ his post mortem examination was conducted on 24.08.1984 by

Dr. R.K. Singh, Senior Medical Officer, Sri Keshav Prasad "'

Gupta Hospital, Varanasi. In the aforesaid post mortem H

A examination on the body of deceased Phool Chand Tiwari1

following injuries were tound:

Lacerated wound 8 cm x .5 cm x scalp and bone of skull on the top of the left side of the head, 11

B cm above the (illegible).

Lacerated wound 1.5 cm x .5 cm~ scalp on the top

)..

of the posterior aspect of the head, 12 cm above and backward from the right ear. c 3.

Lacerated wound on the top of the head towards posterior aspect of skull in between injury No. 1 and 2, .4 cm x .5cm x scalp 2 cm behind the injury No. - 1.

Lacerated wound 1 cm x .5 cm x scalp on the right " D side of the forehead 1.5cm above the right eyebrow.

Lacerated wound 3 cm x .5 cm x scalp on the left side of the forehead just above the left eyebrow.

E 6.

Traumatic swelling with contusion 18 cm x 8 cm on the front aspect of the chest, left side and front '1 aspect of the left shoulder joint and left arm front aspect. There is fracture of the upper 1/3 or the ~

F humorous of the left arm and depressed fracture of 2nd, 3rd and 4th ribs on the left side of the chest left lung is lacerated and torn in the middle portion. ..

'~ 7.

Abraded contusion 15cm x ?cm along with the posterior aspect of the left arm 6cm below the injury G No. 6. ~

Incised wound 3cm x 0.5cm x skin on the dorsum of the left hand near the root of the index finger of 1--- the left hand. &.---- ?- H

Stab wound 1 cm x 0.25cm x skin on the do.rsum of A the left hand near the root of the index finger on the left hand.

10.

Stab wound 1 cm x 0.25 x skin on the dorsum of the left hand, near the root of the middle finger of the B left hand.

11.

Contusion 18cm x 6cm along the outer aspect of the left thee 2 cm above the knee joint.

12.

Incised wound 1.5cm x 0.25cm x skin from the c above downwards on the front of the left leg 12cm above the ankle joint.

13.

Traumatic swelling 1 cm x 5 cm along the front aspect of the left leg 15cm below the left knee.

D 14.

Incised wound from above downwards 1cm x 0.5cm on the outer aspect of the right forearm ?cm right elbow joint.

15.

Contusion 15cm x 2.5cm on the front of the right . side of the chest, 9cm below the right sterno E

calvicular joint. There is fracture of 3rd rib in the right side of the chest and right lung is lacerated.

16.

Contused area 15cm x ?cm on the front of the right arm on right shoulder joint.

17.

Contused area with multiple contusions on the.upper

"' part of the back. Both across both shoulder blades in area 18cm x 10cm.

18.

Contused-area with multiple contusions on both side G

of the back in lower part 25cm x 12cm, 9cm below the injury No. 17 liver and right kidney is lacerated corresponding to this ante mortem injury.

17. During the trial, the prosecution examined six H

A witnesses including PWs 1 and 2, who were the injured

witnesses. The post mortem examination report and the injury reports were also proved in the trial. A comparative reading of the aforesaid injury reports and the post mortem examination report along with the statements of the witnesses and the B statements made in the First Information Report would indicate that the deceased received grievous injuries both with blunt and sharp edged weapons. There are stab wounds, incised wounds along with lacerated wounds, which suggest that not only blunt weapon was used but sharp edged weapon was also used. In C fact, the injury report submitted by the doctor of the Primary

Health Center had also stated that sharp weapon like ballam was also used. When we looked into the evidence of the doctor who had conducted the post mortem examination and given a report, it is revealed that his evidence is also of similar nature.

0 He had stated that the death of the victim was caused due to shock and haemorrhage as a result of ante mortem injuries, specially injury nos. 6, 15 and 18. It isj therefore, established that in the First Information Report the nature in which the incident had occurred and the nature of the injuries received by the deceased and the injured were correctly recorded. The E d.ceased has suffered multiple injuries.

18. So far as injuries received by accused - Sarjoo is concerned, it has come in the statement of the deceased recorded by the investigating officer that he had snatched the F lathi from Sarjoo and wielded the same in defence and in the process, Sarjoo sustained injuries. Similar statement was also made by PW1, which clearly proves and establishes that the deceased -Phool Chand Tiwari had resisted the accused and tried to snatch his lathi, which probably had caused such minor G injury to Sarjoo. That fact also proves and establishes that none

of the complainant party carrieq any weapon with them. They had n, pt even carried a lathi with them otherwse there would have been more injuries. We do not find any vital and major contradictions in between the statements in the First Information 8_ ...... _Repert-and the statements recorded during the trial of PWs 1

" .

and 2. The statements of the aforesaid witnesses are also A sufficiently corroborated with the medical evidence on record.

The contradictions, which have been sought to be pointed out, are found to be only minor in nature and it is no way affect the substratum of the prosecution case. The very fact that the 8 accused were having blunt and sharp edged weapons at the time of scuffle shows the intention of the accused persons to commit the offence so as to prevent the complainant party from watering their field. The had gone to the place of occurrence fully prepared and properly armed with the intention of causing c death and bodily injuries to the deceased as also to the other injured persons.

19. It was also argued that the First Information Report filed against all the family members of "Jagdevn. That may be correct but it is also true that the family members of "Jagdev", D mentioned in the First Information Report, went to the agricultural field of the complainant party being properly armed and that they first prevented them from watering in the agricultural field and then clashed with them, and therefore, they have been named in the First Information Report, which was lodged immediately after the incident.

20. The statements in the First Information Report is by and large are corroborated with the evidence of the witnesses, and therefore, there cannot be any doubt against the accused persons that they have committed the offence. It was next submitted by the counsel appearing for the appellants that Hari Ram Yadav was a minor on the date of occurrence. This fact was raised for the first time before the High Court, which looked into the matter and upon making an inquiry found that he was

a major on the date of occurrence. In that view of the matter, G the aforesaid submission is also without any substance.

21. We find no merit in these appeafsand the same are dismissed accordingly.

K.K.T.

Appeals dismissed.