Holding

The Supreme Court set aside the High Court's acquittal and restored the trial court's convictions, holding that the eye‑witnesses could identify the accused despite the darkness and that the medical evidence was not fatal to the prosecution's case.

Summary

The State of Uttar Pradesh appealed against the Allahabad High Court's acquittal of Sheo Lal and others, who had been convicted by a trial court for murder (Sec. 302 r/w Sec. 34 IPC), voluntarily causing hurt (Sec. 323 r/w Sec. 34 IPC) and assault on a woman (Sec. 354 IPC). The prosecution alleged that the accused, who were relatives of the victims, attempted to molest their cousin (PW‑4) and, when confronted, attacked the deceased (PW‑3) and other family members, causing the deceased's death. The High Court had set aside the convictions on the ground that identification of the accused in the dark night was impossible and that the injured eye‑witness's medical evidence was unreliable. The Supreme Court rejected these conclusions, holding that the lack of a specific light source in the FIR does not preclude identification when the witnesses are familiar with the accused, and that the medical report’s omission of colour does not invalidate the testimony. Consequently, the Court set aside the High Court judgment, restored the trial court's convictions, and ordered the respondents to surrender to serve the remainder of their sentences.

Issues considered

Whether identification of the accused by eye‑witnesses is possible in darkness without a specific mention of a light source in the FIR.
Whether the medical evidence of an injured eye‑witness can be discarded solely because the colour of the bruise was not recorded.
Whether the prosecution established a motive of molestation sufficient to sustain conviction under Sec. 354 IPC.
Whether the trial court's convictions under Sec. 302 r/w Sec. 34, Sec. 323 r/w Sec. 34 and Sec. 354 IPC were legally sustainable.
Whether the High Court erred in acquitting the accused on the above grounds.

Legislation cited

Indian Penal Code, 1860s. 302, s. 323, s. 34, s. 354

Subjects

murderculpable homicidecommon intentionsexual assaulteye‑witness identificationdark nightmedical evidenceconvictionacquittalIndian Penal Code

Judgment

[2009] 2 S.C.R. 343

~ STATE OF U.P. A
II.
SHEO LAL & ORS.
Criminal Appeal No. ._,362-363 of 2002
FEBRUARY···~2. 2009
B
[DR. ARIJIT PASAYAT AND DR. MUKUNDAKAM
SHARMA, JJ.]
Penal Code, 1860 :

ss. 302 rlw s. 34 and s. 323 rlw s. 34, s. 354 - Murder - c
Allegation of molestation by niece of deceased against
accused person - Fatal injuries to deceased as also injuries
to eye-witness - Conviction by trial court - However, acquittal
by High Court - Sustainability of - Held: Not sustainable -'-
Judgment of High Court full of contradictions - There was total
~ D
• non-application of mind - Evidence of injured eye-witnesses
cannot be discarded -Accused were not strangers to witnesses
and as such the identification was pcssible in dark night.
According to the prosecution case, SR and S tried
to molest their cousin PW4. Brother of PW 4 complained E
to the family of SR and S. Thereafter, at night SL, father of
SR along with SR and S armed with weapons went to the
/'" ~ house of KP-uncle of PW4. They hurled abused and
inflicted fatal injuries to KP. PW 1, 2, 4 and other family
members came to the spot. PVV-2 also sustained injuries. F
FIR was lodged. PW 1 to 4-eye witnesses were examined.
Trial court convicted accused persons u/s. 302 r/w s. 34
and s. 323 r/w s. 34 IPC. Accused S was also convicted u/
s.354 IPC. However, High Court acquitted the accused.
Hence the present appeals. G
... . Allowing the appeals, the Court
HELD: 1.1 One of the prime reasons indicated by the
High Court to discard the prosecution version is that in a
343 H
344 SUPREME COURT REPORTS [2009] 2 S.C.R.

A dark night the possibility of identification was not there. .
The source of light for identification was not mentioned
in the FIR. There were four of the witnesses and some of
them were injured in the incidence. PW2 was· an injured
eye witness. His evidence has been discarded on the
B ground that the injury sustained by him was a -typical
bruise. The obseniations of th.e High Court show total non
application of mind. [Para 5] [ ·3·4a.c1
1.2 Merely because the colour of the injury was not
noted and the doctor has written that the injury was fresh, I
c that is no ground to discard his evidence. High. Court has
also attached unnecessary
·t
importance to the fact
~ • .
that·one
•

witness stated that the assault continued _for. 8 to 1~
minutes while another said it was around three_ minutes.
T'1e doctor's evidence was discarded on the ground that
D his testimony was of poor quality and does not inspire />--
confidence. The injury appeared to be manuf~ctured· one. •
The judgment is full of contradictions. High· Court at one
place noticed that it is improbable that the accused person
who was·cousin of PW 4·tried·to molest her. In the same
E breath the High Court in another:place has held. that the
....
accused persons to molest PW 4 at-a particular moment
took her to the Arhar field and this-was done with her· prior ,
consent High Court goes further to say that there .was 1-
.;::_
.

no planning in the act and h·ad appeared to be chance
F meeting which led to it. The absurdity .of the High Court's
conclusions tan be gauged from· the fact that·the High
Court found it unnatural that two girls of almost of the
same age group were walking and as to why one of them
would move ahead and the other would ·come behind is
unnatural. High Court further has held that PW 3 ·stated in
G
Court that PW4 on her r~turn told him that accused·
~
..
persons has teased her in ~he fiel~. High Court found fault
with. the statement on the ground that he did nottell .before
the police that the girl did ·not tell PW-3 -that the accused
persons held her hands. So far ~s the High Court's
H
STATE OF U.P. V. SHEO LAL & ORS. 345

t conclusions that there was non-mention of the source of A
light in the FIR it needs to be noted that the accused
persons were not strangers to the witnesses. They were
closely related. Therefore, High Court's judgment is
clearly unsustainable and is set aside. The judgment of
the trial court is restored. [Paras 6 and 9] [ 349-A, B, C, D, B
E; 350-F]
Nathuni Yadav v. State of Bihar 1998 (9) SCC 238;
Bharosi v. State of M.P 2002 (7) SCC 239; S. Sudershan
Reddy v. State of A. P 2006 ( 10) SCC 163 - referred to.
Case Law Reference
c
1998(9) sec 238 Referred to. Para 7
2002(1) sec 239 Referred to. Para 8
2006(1 O) sec 163 Referred to. Para 8
.... D
CRIMINALAPPELLATE JURISDICTION: Criminal Appeal
* Nos. 362-363 Of 2002
From the final Judgement and Order dated 16.12.1999 of
the High Court of Judicature at Allahabad in Criminal Appeal
No. 182 & 472 of 1980. E
Sahdev Singh, Mukesh Verma and Chandra Prakash
~
Pandey, for the Appellant.
.j>.

lrshad Ahmad, Arvind Kumar Shukla, G.D. Misra, Ashutosh
Pathak, Peter Sungnem and Nihal,. for the Respondent. F
The Judgement of the Court was delivered by
DR. ARIJIT PASAYAT, J.
1. Challenge in these appeals is to the judgment of a
Division Bench of the Allahabad High Court directing acquittal G
... ... of the respondents. By the impugned judgment two appeals
were disposed of. The appellant-accused in each case had
questioned correctness of the judgment rendered by learned
1
9 h Additional Sessions Judge, Kanpur in ST Case Nos. 190 of
1979 and 212 of 1979. Each was convicted for offence H
346 SUPREME COURT REPORTS [2009] 2 S.C.R.

A punishable under Section 302 read with Section 34 and Section +
323 read with Section 34 of the Indian Penal Code, 1860 (in
short the 'IPC') respectively. Additionally, accused Su render was
convicted for offence punishable under Section 354 IPC.

2. Prosecution version as unfolded during trial is as follows:
B
In the.evening of 20.3.1979 at about 6.00 pm Km. Sharmi
(PW .4) was going to attend the call of nature. She was moving
few steps ahead of Km. Munni. It is alleged that at the relevant
moment Surendra and Suresh accosted Km. Sharmi. They told
c her to accompany them into Arhar field and with that intent they
also held her hands. On the alarm raised by her Km. Munni
rushed to her rescue. At this, both the accused persons took to
f-
their heels. On her return to the house, Km Sharmi (P.W.4)
narrated the incident to her maternal uncle Krishanapal, the
D deceased in the incident, and Vijaypal (P.W.3). Both the brothers, ~

went to the house of accused Sheo Lal, and made a complaint ~

about the shameful behavior of his son and nephew. Having
made the complaint they came back to their house.

E The deceased, Krishnapal, and his brother Vijayapal were
relaxing and smoking Bidis on the Chabutara, which abuts their
house. A burning lantern was also hanging near the grass-cutting
machine. A lamp was also burning at the main door of the house. ~
"'
·At about 8.00 P.M. Shea Lal accompanied by Suresh and
F Surendra came to the house of Krishanapal, deceased. Shea
Lal and Suresh were armed with Lathis and Surendra was
armed with a knife. Immediately on their arrival near the
deceased, they started hurling abuses and said that since they
are maligning his family, inflicted lathi injuries upon the deceased
G
and Surendra attacked him with knife. The hue and cry raised
;..
by the deceased attracted Ratipal (P.W1 ), Chandrapal (P.W.2),
Km. Sharmi (P.W.4) and some other family members to the spot.
Ratipal was also possessing a- torch in his hand. Chandrapal
was also attacked with lathis when he tried to intercede. He
H
~
STATE OF U.P. V SHEO LAL & ORS. 347
[DR ARIJIT PASAYAT J.]

had sustained lathi injuries. As a result of the injuries sustained, A
Krishanapal fell down and died instantaneously. The accused
persons withdrew thereafter.
The F.l.R. of the incident was lodged by Vijaypal (P.W.3).
The written report is Ext. Ka.I. It was scribed by Rampa! and
8
was lodged at P.S. Bidhnoo at 1t.15 P.M. He was accompanied
to the police station by Ratipal, Chandrapal and Rampa!. The
chick is Ext. Ka. 2. It was prepared by P.W. Lallan Singh, Head
Moharir.
Chandrapal (P.W.2) was sent from the police station to c
the Primary Health Center, Bidhnoo for medical examination of
his injuries. He was escorted by constable Mahipal (P.W.5), for
that purpose.
After completion of investigation charge sheet was filed.
As the accused persons pleaded innocence trial was held. The D
trial court recorded conviction. As noted above separate
appeals were filed by each one of the accused persons which
were disposed of by the common judgment directing their
acquittal. The stand of the accused appellant before the High
Court was that the motive suggested is clearly unacceptable as E
the parties are inter-se related and it is improbable that the
accused persons will tried to molest their cousin (PW 4) in the
manner as alleged by the prosecution. It was submitted that the
incident has not occurred in the manner alleged and the FIR
was ante dated. The trial court placed reliance on the evidence F
of four eye witnesses PW 1 to PW4. The High Court noted that
so far as the.motive is concerned the only witness is PW 4. The
High Court accepted the defence version that the motive was
not established and the accusations were also not established.
Accordingly, it directed acquittal.
G
-. -* 3. In support of the appeals, learned counsel for the
appellant submitted that the conclusions of the High Court are
absolutely unsustainable. What appears to have weighed with
the High Court to doubt versify of prosecution version is the
introduction of a witness i.e. Munni Devi regarding the motive. H
348 SUPREME COURT REPORTS [2009] 2 S.C.R.

A The conclusions are based on presumption and surmises. There 4
were contradictory observations and no reason has been
r
indicated to discard the version of the injured eye witnesses.
4. In response, learned counsel for the respondents
supported the judgment of the High Court.
B
5. One of the prime reaso.ns indicated by the High Court
to discard the prosecution version is that in a.dark night the
possibility of identification was not there. The source of light for
identification was not mentioned in the FIR. It is significant to
note that there were four of the witnesses and some of them were
c injured in the incidence. PW2 was an injured eye witness. His
evidence has been discarded on the ground that the injury
sustained by him was a typical bruise. The following observations
of the High Court show total non application of mind.

D · "Now we take up the testimony of Chandrapal (P.W.2), ~
)('
who, according to the prosecution, is an injured witness.
He has sustained these injuries while trying to intervene.
His injury was examined on 20-3-1979 at 11.30 p.m. His
medical examination was conducted by Dr. A.K. Shukla
(P.W.8). This witness has sustained only a solitary
E
contusion. The injury is 21 cm.x 15 cm. On the left side of
back crossing the spine upto the right side at the level of
fourth vertebral column. The injury was simple and was ... ..;-

fresh at the time of medical examination. The Doctor has
not noted the. color of this injury. He stated that by writing
F 'fresh' he meant that the injury was 2/3 hours old. He has
made the entry with regard to this injury in the out door
patients' register. When this doctor was examined in court,
the injured was not present before him. He has not noted
down the depth of the bruise. He had admitted that these
G bruises could be managed with a chemical. He had stated
,.. >-
in court that the injury sustained by injured Chandrapal
was a typical bruise. It was depressed in the middle and
the edges were slightly raised, but when probed further he
admitted that these facts, were not noted down by him in
H the injury report or any where else."
STATE OF U.P. V SHEO LAL & ORS. 349
[DR. ARIJIT PASAYAT J.]

+ 6. Merely becasuse the colour of the injury was not noted A
and the doctor ha·s written that the injury was fresh, that is no
ground to discard his evidence. The High Court has also
attached unnecessary importance to the fact that one witness
stated that the assault continued for 8 to 10 minutes while another
said it was around three minutes. The doctor's evidence was B
discarded on the ground that his testimony was of poor quality
and does not inspire confidence. The injury appeared to be
manufactured one. The judgment is full of contradictions. As
stated above, the High Court at one place noticed that it is
improbable that the accused person who was cousin of PW 4 c
tried to molest her. In the same breath the High Court in another
~ place has held that the accused persons to molest PW 4 at a
particular moment took her to the Arhar field and this was done
with her prior consent. The High Court goes further to say that
there was no planning in the act and had appeared to be chance
..... D
)>( meeting which led to it. The absurdity of the High Court's
conclusions can be gauged from the fact that the High Court
found it unnatural that two girls of almost of the same age group
were walking and as to why one of them would move ahead
and the other would come behind is unnatural. The High Court
further has held that PW 3 stated in Court that PW4 ori her return E
told him that accused persons has teased her in the field. The
,,. High Court found fault with the statement on the ground that he
!'-
did not tell before the police that the girl did not tell PW 3 that
the accused persons held her hands. So far as the High Court's
conclusions that there was non-mention of the source of light in F
the FIR it needs to be noted that the accused persons were not
strangers to the witnesses. They were closely related.

7. !n Nathuni Yadav v. State of Bihar [1998(9) SCC 238]
this Court observed that under what circumstances the lack
G
... of moonlight or artificial light does not per se preclude
-- identification of the assailants. It was noted as follows: (SCC
p. 242, para 9)

"Even assuming that there was no moonlight then, we have
to gauge the situation carefully. The proximity at which the H
350 SUPREME COURT REPORTS [2009] 2 S.C.R.

A assailants would have confronted with the injured, the
possibility of some light reaching there from the glow of
stars, and the fact that the murder was committed on a
roofless terrace are germane factors to be borne in mind
while judging whether the victims could have had enough
B visibility to correctly identify the assailants. Over and above
those factors, we must bear in mind the further fact thatthe
assailants were no strangers to the inmates of the tragedy-
bound house, the eyewitnesses being well acquainted with
the physiognomy of each one of the killers. We are,
c therefore, not persuaded to assume that it would not have
been possible for the victims to see the assailants or that
there was possibility for making a wrong identification of
them. We are keeping in mind the fact that even the
assailants had enough light to identify the victims whom
they targeted without any mistake from among those who
D
were sleeping on the terrace. If the light then available,
though meagre, was enough for the assailants why should
we think that the same light was not enough for the injured
who would certainly have pointedly focussed their eyes on
the faces of the intruders standing in front of them. What
E is sauce for the goose is sauce for the gander.''.
8. The position was reiterated in Bharosi v. State of M.P.
[2002(7) SCC 239] and S. Sudershan Reddy v. State of A.P.
[2006(10) sec 163].
F 9. The High Court's judgment therefore is clearly
unsustainable and is set aside. The judgment of the trial court is
restored. The respondents shall surrender to custody forthwith
to serve the remainder of sentence.
10. Appeals are allowed.
G

N.J. Appeals allowed.