Supreme Court of India
AKHTAR & ORS.versusSTATE OF UTTARANCHAL
- Citation
- 2009 INSC 471
- Decided
- 9 April 2009
- Disposal
- Dismissed
- Bench
- S B SINHA
Holding
The conviction was upheld because the injured eyewitness testimony, corroborated by medical reports and other evidence, was sufficient despite minor inconsistencies.
Summary
The appellants Akhtar and others were charged under Sections 148, 149, 302, 307 and 324 of the IPC for a daylight assault on a disputed piece of land that resulted in two deaths and two injuries. The trial court acquitted them, but the High Court convicted the surviving five accused on the basis of testimony of two injured eye‑witnesses (relatives of the deceased), a hostile but corroborative driver‑witness, medical injury and post‑mortem reports, and the recovery of a pistol. The appellants challenged the reliability of the injured witnesses, the non‑examination of medical officers, minor inconsistencies in the prosecution case, and the presence of semi‑digested food in the victims' stomachs. The Supreme Court held that the injured witnesses' statements were trustworthy, the admitted medical documents could be read as substantive evidence under CrPC §294, and minor contradictions did not render the trial fatal. Consequently, the Court dismissed the appeal and upheld the convictions and sentences.
Issues considered
- The credibility of injured eye‑witnesses who are relatives of the deceased
- Whether the non‑examination of medical officers invalidates medical reports
- Whether minor contradictions in the prosecution evidence render the trial fatal
- The relevance of semi‑digested food found in the victims' stomachs to the time of death
- Whether the evidence establishes guilt beyond reasonable doubt under Sections 148, 149, 302, 307 and 324 IPC
Legislation cited
- Code of Criminal Procedure, 1973s. 294, s. 35, s. 378(3), s. 379
- Indian Penal Code, 1860s. 148, s. 149, s. 302, s. 307, s. 324
Subjects
criminal lawmurderculpable homicideassaulteyewitness testimonymedical evidenceprocedural lawconvictionIPC sectionsevidence law
Judgment
[2009) 5 S.C.R. 771
-· AKHTAR & ORS.
v.
A
STATE OF UTTARANCHAL
(Criminal Appeal No. 1590 of 2007)
... APRIL 9, 2009 B
[S.B. SINHA, B. SUDERSHAN REDDY AND
DR. MUKUNDAKAM SHARMA, JJ.]
Penal Code, 1860- ss. 148, 3021149, 3021149, 3071149
and 3241149 - Assault resulting in death of two and injuries
c
to two - Motive established - Testimony of two injured eye-
witnesses - Corroborated by medical evidence Hostile
..... witness also corroborating the injured eye-witnesses as
_,
regards date, time and place of occurrence - Genuineness
of post-mortem report and injury report proved - Non- D
examination of doctor - Acquittal by trial court - Conviction
by High Court - On appeal, held: The e_yidence of the case,
establish the involvement of the accused - Minor
contradictions would not render the trial fatal - Conviction
· confirmed. E
Appellant-accused alongwith three other accused
were prosecuted u/ss. 147, 148, 149, 307 and 302 IPC.
Prosecution case was that there was a dispute between
the complainant and accused party over a piece of land. F
When the complainant party was ploughing the disputed
land, the accused party came armed with deadly
weapons. The assault resulted in death of two persons
and injuries to two persons. Trial Court acquitted all the
accused. During pendency of the appeal before High G.
Court three of the accused died and the appeal as
regards them abated. High Court convicted the appellant-
accused. Hence the present appeal.
Dismissing the appeal, the Court
771 H
772 SUPREME COURT REPORTS (2009] 5 S.C.R.
A HEL0:1. 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
B possession on a particular piece of land. PW-2 and PW-
3 in their deposition have stated that on account of
dispute and litigation with regard tc• the piece of land, the
accused bore enmity against them (complainant) and the
accused were on the look out to kill them (complainant).
c [Para 12] [779-0, E]
2. Merely because PWs 2 and 3 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 witnessies are related to the "
D deceased but at the same time they were also injured
witness~s. 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
E 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
F with respect to litigation among themselves itself give the
unmistakable impression that there was indeed motive to
attack the deceased and the injurE1d witnesses.[Para 14]
[780-0, E, F]
3. Though PW-4, another eye-witness who was the
G
driver of the tractor on that day at the place of occurrence
was declared hostile, he substantially corroborated the
prosecution version to the extent of the date, time and
place of the incident as deposed by the two injured eye-
witnesses. Further, even if the recovery of the pistol has
H
AKHTAR & ORS. v. STATE OF UTIARANCHAL 773
)
not been proved beyond reasonable doubt, the testimony A
,,
of the two injured eye-witnesses, which is quite
consistent and has further been corroborated by the
medical evidence, cannot be disbelieved. [Para 15) (780·
G; 781-A, BJ
B
Krishan v. State of Haryana 2006 (12) SCC 459;
Surender Singh v. State of Haryana 2006 (9) SCC 247 and
M.P. v. Mansingh 2003 (10) SCC 414, relied on.
4. Non-examination of the concerned medical officers
is not fatal for the prosecution. There is no denial of the c
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 u/s. 294 Cr.P.C. It is settled D
-
-¢
. 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. Accordingly, the post-mortem
report, if its genuineness is not disputed by the opposite E
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.
[Para 16) (781-C-E)
>
5. The plea that there could not have been semi- F
digested food in the stomach of the deceased at 10.00 AM
since the deceased were fasting as it was month of
Ramjan, is not sustainable. It is common knowledge that
during holy Ramjan heavy food is taken before sunrise.
PW-2 stated that the deceased had taken 'sahri' i.e. G
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 H
774 SUPREME COURT REPORTS [2009] 5 S.C.R.
'
A 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, clearly establish the
B involvement of the accused-appellant on the date of
occurrence. [Para 17) [781-G-H; 782-A-B]
Sarbu/ Singh and Ors. v. State of Punjab 1993 Supp (3)
SCC 678 and Virendra @Buddhu and Anr. v. State of U. P.
2008(15) SCALE 283, relied on.
c
Case Law Reference:
2006 (12) sec 459 relied on Para 13
2006 (9) sec 241 relied on Para 13
,.
D
..
2003 (10) sec 414 relied on Para 13
1993 supp (3) sec 678 relied on Para 18
2008(15) SCALE 283 reliEtd on Para 18
E CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 1590 of 2007.
From the Judgment and Order dated 18.7.2007 of the High
Court of Uttaranchal at Nainital in Government Appeal No. 1169
F of 2001.
Dr. Aman Hinqorani, Annapoorna and Hingorani &
Associates for the Appellants.
Abhay Prakash Sahay and Jatinder Kumar Bhatia for the
G Respondent.
The Judgment of the Court was delivered by
DR. MlJKUNDAKAM SHARMA, J. 1. This statutory
H
AKHTAR & ORS. v. STATE OF UTIARANCHAL 775
) [DR. MUKUNDAKAM SHARMA, J.]
appeal arises out of the final judgment and order dated A
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 B
them to undergo rigorous imprisonment for life by setting aside
the order of acquittal passed by the trial court.
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 C
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 D
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, E
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 F
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
them, namely Asgar, Shakil, Jamil Ahmad and Mobin sustained G
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
H
776 SUPREME COURT REPORTS [2009] 5 S.C.R.
A 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
8
written First Information Report (iin 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. 160of1987 on 13.5.1987, at about 11.20
C 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
D 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 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
E 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
F 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
G 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
H
AKHTAR & ORS. v. STATE OF UTTARANCHAL 777
[DR. MUKUNDAKAM SHARMA, J.]
)
accused/appellant Akhtar, a pistol, used in the crime, was A
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 investigation the police
~.
submitted charge sheet on 30.05.1987 against all the eight B
accysed/appellants, namely, Akhtar, Mohd. Umar, Nuru, Rais
alias Gabru, Yamin, Yasin and Amir Bux and Alla Bux.
5. The Addi. 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 c
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 D
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.
' E
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
l.
the State filed an appeal before Allahabad High CoOrt on F
29.09.1989 in which leave was granted under Section 378 (3)
of the Code of Criminal Procedure, 1973 (in 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
G
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
H
778 SUPREME COURT REPORTS [2009] 5 S.C.R.
A 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.
B 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/
c 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.
7. Aggrieved by the said decision of the High Court, the
five appellants have preferred the present appeal under Section
D 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
E on the body of informant Jamil (PVV2) 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. AK. Lumba.
F 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. AK. Lumba. In the
opinion of the Medical Officer, both Shakil and Asgar died on
G 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,
H
... AKHTAR & ORS. v. STATE OF UTTARANCHAL
[DR. MUKUNDAKAM SHARMA, J.]
779
!
genuineness of which has also been admitted by the defence A
counsel, discloses that on 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 B
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 c
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.
D
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 E
Ahmed (PW-2) and Mobin (PW-3) in their deposition have
.,. stated that on account of dispute and 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). F
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 G
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
H
780 SUPREME COURT REPORTS [2009] 5 S.C.R. -
A 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.
B 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 appellant that the
testimony of Jamil Ahmed (PW-2) and Mobin (PW-3) cannot
C 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
D 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
E 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
F 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.
G 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 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
H
. AKHTAR & ORS. v. STATE OF UTTARANCHAL
[DR. MUKUNDAKAM SHARMA, J.]
781
.)
frightened and ran away from the place of occurrence. This A
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 B
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
c
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. !t is
settled position of law that if the genuineness of any document D
J
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. 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 E
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 F
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
G
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
H
782 SUPREME COURT REPORTS (2009) 5 S.C.R. ..
'
A 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,
B 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) sec 678], where some semi-digested food was found
in the stomach of the deceased therein although there was
c evidence that they had taken food immediately before the ,
'
occurrence, this Court held as under:
"6. We see absolutely no reason~ discredit the evidence
of the three eyewitnesses whose presence cannot be
D 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
E 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 c.
contents cannot be determined with precision at the time '
of death. As rightly held by the High Court, the trial court
,__
F grossly erred in basing its verdict mainly on the nebulous
medical observation."
This position of law has been recently reiterated by this
Court in \lirendra @Buddhu & Anr. v. State of U. P. (2008(15)
SCALE 283).
G
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 decision against each accused i.e.
H
AKHTAR & ORS. v. STATE OF UTTARANCHAL 783
[DR. MUKUNDAKAM SHARMA, J.]
Mohd. Umar, Nuru, Rais alias Gabru, Amir Bux and Yamin A
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 B
imprisonment for a period of one year under Section 324/149
IPC, are hereby upheld. The sentences awarded to them shall
run concurrently.
K.K.T. Appeal dismissed.
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