Holding

The High Court erred in acquitting the accused; the evidence of eye‑witnesses and medical reports was reliable, and the conviction under Sections 302 r/w 149 IPC must be restored.

Summary

The incident occurred on 2 November 1981 when Ram Abhilakh Dubey was attacked and later died, leading to charges against Shobhanath, Triveni Prasad and others under Sections 302 r/w 149, 147 and 148 of the IPC. The trial court convicted the accused and sentenced them to life imprisonment, but the Allahabad High Court acquitted them, citing alleged discrepancies in medical reports, the absence of a properly recorded dying declaration, and questioning the credibility of the eye‑witnesses. On appeal, the Supreme Court examined the evidence and held that the High Court misread the medical reports, improperly discounted the dying declaration, and erred in treating the witnesses as mere chance witnesses. The Court found the eye‑witness testimonies coherent and corroborated by the injury and post‑mortem reports, and rejected the claim of undue delay in reporting. Consequently, the Supreme Court set aside the High Court’s acquittal and restored the trial court’s conviction and sentence.

Issues considered

Whether the High Court was justified in acquitting the accused on the basis of alleged discrepancies in the injury, post‑mortem and inquest reports.
Whether the dying declaration of the deceased, not recorded by police or doctor, can be relied upon.
Whether the eye‑witnesses (PW‑1, PW‑3, PW‑6) can be treated as credible witnesses despite being labeled as chance witnesses.
Whether the delay in reporting the incident and taking the victim to hospital affects the prosecution's case.

Legislation cited

Code of Criminal Procedure, 1973s. 313
Indian Penal Code, 1860s. 147, s. 148, s. 149, s. 302

Subjects

murderIPC 302Section 149eye‑witness testimonydying declarationmedical evidenceacquittalconvictionappellate review

Judgment

[2009) 9 S.C.R. 985
....
...
STATE OF U.P. A
'• v.
SHOBHANATH AND ORS.
(Criminal Appeal No. 276 of 2002)
MAY 8, 2009
8
[OR. ARIJIT PASAYAT AND DR. MUKUNDAKAM
~- SHARMA, JJ.]

PENAL CODE, 1860:
c
Sections 147, 148, 302 rlw 302 - Conviction and
sentence by the trial court - Set aside by the High Court and
the accused acquitted - Correctness of - Held: In view of the
facts and evidence on record, High Court was not right in
acquitting the accused - Order of acquittal passed by High D
-#.
.#
Court set aside - Order of conviction by trial court restored.

The trial court convicted the respondents under
Section 302 r/w Section 149 IPC and sentenced them to
life imprisonment and rigorous imprisonment under
various Sections. The High Court acquitted the E
respondents. Hence ttle appeal.

- \, Allowing the appeal, the Court

HELD: 1. So far. as discrepanci.es between the
statements of the eye witnesses and the medical
F
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 took place at
about 5 p.m. on 2.11.1981. It YI.as the month of November,
,
~.
but at 5 p.m., there would be still day light. It has also come G
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

- 985 H
986 SUPREME COURT REPORTS [2009] 9 S.C.R

>-
A presence of PW-1 with deceased on that particular day +-
also appears to be natural. [Para 18] [994-A-C]
...
2. In the post mortem examination, five injuries were
found on the body of the deceased. Said injuries found
in the post mortem examination when compared with the
B
injuries recorded in the injury report, it would be
establiShed.. that all the injuries are similar in nature. $0
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
c Inquest Report. It is also settled law that Inquest 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 this Court feels is based
D _on misreading of evidence and misappreciation. [Para 21]
.k
[994-G-H; 995-A-B] ...
3.1. PW-1, the informant who was the son of the
deceased in his statement has clearly stated in detail as
E 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
F to wait for some time for getting a conveyance to enable
him to shift his father to the Police Station which they
J
-
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 cannot be said
G
that there was any undue delay either in reporting the ~-

incident to the police or taking the victim to the hospital.
[Para 23] [995-D-F]
"'
3.2. The High Court has doubted the entire
H prosecution case on the ground of the aforesaid delay -
STATE OF U.P. v. SHOBHANATH AND ORS . 987

..,
....
of about an hour in reporting the incident to the Police. A
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 ey_e-
witnesses were also mentioned. The informant examined
himself as PW-1. He narrated the entire incident as it B
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 in
which he has not been assaulted by the accused
persons. He also stated in his deposition that he had not c
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 D
... of PW-1 appears to be cogent and natural. The same also
Jo.
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. [Para 24] [995-G-H; 996-A-D]
~
3.3. 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. The
said findings are based. on surmises an~ conjectures. F
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 G
~.

'
· occurrence cannot be said to be unnatural. [Paras 25]
' [996-D-F]

4. So far as the dying declaration of the deceased is
concerned, the same apparently was not recorded either
H
988 SUPREME COURT REPORTS (2009] 9 S.C.R.

A 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
B 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.
[Para 26) [996-F•H; 997-A] +
5. There is no reason as to why close relatives of the
c 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. [Para 27) [997-A-B]
D
)'
6. The order of acquittal passed by the High Court is
set aside and order passed by the trial court is restored. "
[Para 28) [997-B-C]
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
E
No. 276 of 2002.

From the Judgment & Order dated 7.4.2000 of the High )-·
· Court of Judicature at Allahabad, Lucknow Bench, Lucknow in
Criminal Appeal No. 631 of 1984.
•'
F
Pramod Swarup, Bharat Ram and Anil Kumar Jha for the
Appellant.

H.L. Agarwal, G.S. Bhatt, P.K. Bhatt, Uma Shanker and
S.P. Tiwari Praveen Swarup for the Respondent.
G !f
The Judgment of the Court was delivered by

DR_- MUKUNDAKAM SHARMA, J. 1. This appeat is
directed against the judgment and order dated 07.04.iOOO
H -
,,., .
STATE OF U.P. v. SHOBHANATH AND ORS. 989
----J [DR. MUKUNDAKAM SHARMA, J.]

-"': passed in Criminal Appeal No. 631 of 1984 whereby the A
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 B
16.8.1984 passed by the Special/Additional Sessions Judge,
Sultanpur, whereby the trial court convicted the respondents
.-4~ 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
c
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- D
"' I>
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 staQding at the crossing of Setha Road
at the shop of Ram Kishore Barayee for taking betel, the E
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 F
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 faJlen on tpe ground.
It was stated that an alarm was raised by Parasnath Dubey
because of which Ram Kripal, Ram Bahal, Parasnath and Lalta G
-+ Prasad and other reached there arid saw the occurrence. A
.... report of the incident was lodged afthe Police Station Gauriganj
District Sultanpur on 02.11.1981 at about 6.35 p.m. Ram
Abhilakh Dubey later on. succumbed to the· injuries i.e. on
H
990 SUPREME COURT REPORTS (2009) 9 S.C.R.

A 3.11.1981at8.30 p.m. T

3. The deceased Ram Abhilakh Dubey who received
injuries on 0.2.11.1981 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
8
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 ;

c 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
D Ram Abhilakh Dubey, on 3.11.1981, the case was converted
to under Section 304 IPC and entries were made accordingly. --''
A.

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,
E
the Police filed the charge sheet against all the ~ccused
persons. Charges under Section 147, 148 and 302 read with
Section 149 IPC were framed against all the accused persons
for having formed an unlawful assembly and in furtherance of
the common object, all of them committed murder of deceased
"x __ ,
'

F 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
G persons in murdering the deceased Ram Abhilakh Dubey. The
.f.
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
H
STATE OF U.P. v. SHOBHANATH AND ORS. 991
[DR. MUKUNDAKAM SHARMA, J.]
- (PW-6) who were also examined in support of the case of the A
""'
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 B
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 c
examined as PW-5 and the post mortem report was exhibited
as Ext. Ka-10.

9. The Investigating Officer who submitted the chargesheet
as Ext. Ka 20 was examined as one of the prosecut ion 1
D
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 E
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 F
in the witness box in order to help the complainant Parasnath
Dubey because they together formed one party in the previous
litigatiorrand criminal cases are pending between them and:the
accused party.

12. The Additional Sessions Judge by his judgment and G
~-
...,,,... order convicted all the accused persons under the aforesaid
sections and sentenced them to imprisonment for life. So far
as Shobnath, Trivenj Prasad, Vijai Pal, Sudhakar and
doodhnath are concerned, they were sentenced to life
H
.-

992 SUPREME COURT REPORTS (2009] 9:S.C:R.

A imprisonment under Section 302 read with Section 1.49 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,
B since he was aged about 16 years, therefore the benefit of the
Children Act, 1960 was 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
c 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.
D
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.
E
16. Oin 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 charg~s
. leveled against them held that the dying declaration of the · ...
.F deceased itself would prove and establish· the act of.
invowement 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 .
• qf PW-3 and f'.>W-6 and found that their stat~ments ~re .
.G ··corroborated to each other a.nd also by the medical evidence; · .·
According to the trial court, there was no 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 ti)em to the deceased Ram Abhfi-akh Dubey.
H Having held thus, the learned Additional Sessions Judge
STATE OF U.P. v. SHOSHANATH AND ORS. 993
[DR. MUKUNDAKAM SHARMA, J.]
~-

passed the order of conviction and sentence against all the A
* accused persons.

17. The High Court; however, after hearing the counsel
• appearing tor the parties held that so far as the dying
declaration is concerned, the same could not have been given B
by the deceased immediately after the occurrence as the
prosecution witnesses themselves had stated that he became
:i. unconscious after receiving the blows and therefore he was not
in a stage of giving any such statement although aileged by the
prosecution.
c
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 D
... 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 E
witnesses and that they do not belong to the place of occurrence
and that they are interested witness in giving favourable
'j
evidence for roping in the accused persons with whom 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 F
# 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
G
' ~
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
H
994 SUPREME COURT REPORTS [2009] 9 S.C.R.

A prosecution has failed to prove its case and consequently all j- -
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
B 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 ·-1-
also come in evidence that the deceased had gone to
Gauriganj Bazaar alongwith PW-1 as it was a market day. In a
c 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 Kishore
D 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
}
E 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.
F
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 2.11.1981at7.15 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
G to the Primary Health Centre. ;,,
j..

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
H recorded in the injury report, it would be established that all the
996 SUPREME COURT REPORTS [2009] 9 S.C.R.

-f'
A 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
B 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
c 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.
D
~
25. The High Court was also not right in holding that -th~,
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. The said findings
E 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
. '
i·
date of the incident to the market and PW-3 and PW-6 being
F present at the place of occurrence cannot !>e~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
G 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-
H
STATE OF U.P. v. SHOBHANATH AND ORS. 997
[DR. MUKUNDAKAM SHARMA, J.]
. ,,_
witnesses can under no circumstances be doubted and held A
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 B
the human conduct. In a case of murder the near relations would
make all endeavour to see that actual culprits are punished
j
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 passed by the trial court. The bail c
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. D
--.
G.N. Appeal allowed.

t