Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले

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CRIMINAL APPEAL NOS. 2224-2225 OF 2010
1. These appeals challenge the judgment of the High Court of
Judicature at Allahabad in Criminal Appeal Nos. 290 and 587 of
1981 dated 10.02.2010, confirming the conviction and sentence
passed by the Sessions Judge, Bareilly in S.T. No. 402 of 1979
dated 31.01.1981. By the said judgment, the Sessions Judge,
Bareilly convicted all the accused under Section 302 and Section
307, each read with Section 34 of the Indian Penal Code, 1860, and
sentenced them to life imprisonment and rigorous imprisonment
for a period of four years, respectively.
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2. The Prosecution Case: The case of the prosecution is that,
on 24.08.1979, around 6:30 p.m., Shri Iqbal Bahadur Saxena,
Principal of the Chandra Shekhar Azad Inter-College, Giani, Uttar
Pradesh1, since deceased was sitting with his family physician and
private practitioner Dr. Asghar Ali2 in the verandah outside his
office, situated in the college campus. He sent his security guard
Fazal Maseeh3 to fetch an empty bottle of medicines from his
residence, also within the college campus. As PW-1 was returning
with the bottle, the three accused, Gullu @ Rajesh (A-1), Vimal
Kumar @ Chunnoo (A-2), and Munuwa @ Satish (A-3), are alleged
to have entered the verandah from the south, fired gunshots at the
Deceased as well as at PW-6, and fled towards the north of the
building. PW-6 went to his dispensary located nearby and sought
the help of Mahendra Kumar, a compounder at his dispensary, to
bring the Deceased who had become unconscious, to the
dispensary on a cot for administering first-aid. After that, the
Deceased was put on a bullock cart along with the cot to proceed
1 hereinafter referred to as the ‘Deceased’.
2 hereinafter referred to as ‘PW-6’.
3 hereinafter referred to as ‘PW-1’.
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to Police Station Aliganj. PW-6 is supposed to have followed on
another bullock cart.
3. Upon reaching the Police Station, the Deceased lodged an FIR
at 8:30 p.m. for offence under Section 307 of the IPC, a translated
version of which reads as follows: -
“I, Iqbal Bahadur Saxena S/o Pyare Lal Saxena
(?) am the resident of Village Sarai Jatar, Ugait,
District- Badaun. I am the Principal at Gaini Inter
College. I was sitting in front of Giani School.
Fazal and Asghar were sitting. At around 6.30
P.M. Gullu S/o Mukat, Vimal Kumar S/o
Dataram, Munua S/o Chandra Sen of Gaini
arrived and fired shots with the country made
pistol for killing me. Asghar and I have been hit
by the bullets. (I am?) witness in the case of
Vimal Kumar, therefore it has been done.”
4. The statement was entered into the General Diary by the Head
Constable Raghunandan Lal4, and after recording the statement,
PW-4 sent the Deceased to Visharatganj Railway Station on a
bullock cart for boarding the train to Bareilly for treatment at the
Bareilly General Hospital. Constable Sohan Lal5 is said to have
accompanied him. As per the statement of PW-8, the Deceased
4 hereinafter referred to as ‘PW-4’.
5 hereinafter referred to as ‘PW-8’.
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reached the railway station by 9:15 p.m. to board the train and
finally reached the Bareilly General Hospital by 11:00 p.m., where
Dr. J.N. Bhargava6 examined him at 11:15 p.m. On the other hand,
PW-6’s bullock cart reached the railway station around 10:00 p.m.,
by which time the train carrying the Deceased had already left.
Accordingly, PW-6 boarded the 12:00 a.m. train and reached the
hospital by 2:00 a.m. on the next date, i.e., 25.08.1979.
5. At the hospital, the statement of the Deceased was recorded
by the Tehsildar and Executive Magistrate Shri Subhash C.
Rastogi7, between 11:10 a.m. to 11:20 a.m. on 25.08.1979 after
getting a certificate of medical fitness from Dr. P.K. Bass8. In this
statement, the Deceased recounted events leading to the attack on
him, with crucial differences in motive, place of occurrence, and the
presence of other persons at such site, among others. On
27.08.1979 at 2:35 a.m. the Deceased passed away, and the postmortem which was conducted on the same day recorded seven
6 hereinafter referred to as ‘PW-11’.
7 hereinafter referred to as ‘PW-5’.
8 hereinafter referred to as ‘PW-9’.
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gunshot wounds, stitched wounds and abrasions, and noted that
shock and hemorrhage due to injuries were the cause of death.
6. After the investigation and the arrest of the accused, the
prosecution filed the charge-sheet against the accused, and the
Sessions Judge framed charges under Sections 302 and 307, each
read with Section 34, of the IPC. The prosecution examined 11
witnesses being PW-1 to PW-11, and marked around 28
7. Trial Court: The Trial Court, by its judgment dated
31.01.1981, considered and rejected the appellants’ contention
that the prosecution case was false. It accepted that the FIR was
genuine and not ante-dated, recorded after the dictation of the
Deceased at around 8:30 p.m. upon reaching the police station.
The FIR was treated as the Deceased’s first dying declaration. The
Trial Court accepted that the place of occurrence was the passage
in front of the verandah of Deceased’s office and observed that the
accused could not suggest or prove an alternative place of
occurrence of the crime. The submission concerning the lack of
motive was rejected on the basis of the FIR being treated as the first
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dying declaration, in which the Deceased stated that as he was a
witness in a case against A-2, and hence motive was adequately
proved against A-2. However, the same conclusion could not be
drawn against A-1 and A-3. The Trial Court further discarded the
contradictions that surfaced by the improvements in the
statements of eye-witnesses PW-1 and PW-6 during crossexamination, noting that they were a result of intimidation by the
accused persons who were on bail at the time of recording of
evidence. It held that these improvements did not vitiate the story
of the prosecution. The Trial Court disbelieved the statement of the
Deceased recorded by PW-5 on 25.08.1979, also referred to as the
second dying declaration, as it was recorded more than 16 hours
after the incident, and was possibly a result of prior consultation
and deliberation. As indicated, the Trial Court finally convicted all
the accused under Sections 302 and 307, each read with Section
34 of the IPC. The accused persons were sentenced to life
imprisonment for offences under Section 302 read with Section 34
IPC, and for offences under Section 307 read with Section 34 IPC,
to rigorous imprisonment for four years.
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8. High Court: In the criminal appeals filed by the accused, the
High Court affirmed the convictions and the sentences without any
variation. It noted that the motive against A-1 and A-3 pivoted on
their association with A-2, whose motive for committing the crime
was adequately proved. On the question of contradictions in the
testimonies of the eye-witnesses PW-1 and PW-6, the High Court
noted that despite the inconsistencies, both witnesses were
consistent about specific facts, such as the number of accused
persons present at the site of the crime, firing of gunshots, and the
murder weapon. The Court concluded that the contradictions
resulted from apprehension of consequences, as the eye-witnesses
resided in the same locality as the accused. Further, the High Court
also disbelieved the statement of the Deceased recorded as the
second dying declaration, apart from noticing that the dying
declaration recorded prior in point of time must be given
preference, and its corroboration by the subsequent such
declaration is only a rule of prudence, which does not vitiate the
contents of the first dying declaration. We may note here that
during the pendency of the appeal before the High Court, A-2 had
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passed away, and accordingly the present appeals only concern the
conviction and sentences against A-1 and A-3.
9. Submissions at the bar: We heard Shri Venkita
Subramoniam T.R, AOR at length, and his submissions were later
supplemented by Shri R Basant, Sr. Advocate, assisted by Shri
Likhi Chand Bonsle and Shri Rahat Bansal, Advocates. We also
heard, Shri Sanjay Kumar Tyagi, AOR on behalf of the State of Uttar
Pradesh assisted by Shri Prabhat Kumar Rai and Shri Ajay Kumar
Pandey, Advocates.
10. At the outset, Shri Venkita Subramoniam T.R has submitted
that the FIR itself is false and fabricated and that the subsequent
events concerning the delay of the FIR in reaching the Court also
casts grave doubts about the occurrence of the incident. They
further submitted that there is doubt as to the place of occurrence,
and contradictions surface in the testimonies of the eye-witnesses
PW-1 and PW-6. He submits that the conduct of PW-1 and PW-6 is
rather suspicious and very unnatural. If these eye-witnesses are
discarded, there are no independent witnesses to support the story
of the prosecution, particularly when there are no recoveries of
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weapons in the case. On the other hand, Sh. Sanjay Kumar Tyagi,
has submitted that the findings of the Trail Court as well as the
High Court are based on credible and reliable evidence, particularly
from eye-witnesses who had no interest in securing the conviction
and arrest of the accused. He further submitted that the Trial Court
examined the entire evidence and has given good and valid reasons
for coming to its conclusions, and therefore, the High Court was
right in upholding the decision of the Trial Court.
11. Analysis: Having heard the arguments, we notice some
glaring inconsistencies in the evidence put forth by the prosecution.
We will take note of some such crucial lapses.
12. At the outset, we are not impressed by the submission of Shri
Venkita Subramoniam T.R that the FIR was signed by the Deceased
vertically, in different ink in the FIR, while the contents of the FIR
itself were written horizontally, thereby giving an impression that
FIR was written after the signature which was obtained at a prior
point of time. However, there are certain glaring contradictions that
cannot be ignored. First, there is doubt as to whether the Deceased
authored the FIR and handed it over to the police, as stated in the
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cross-examination of PW-1, or it was orally dictated by the
Deceased and scribed by PW-4, as stated by PW-6 in his chiefexamination. The other connected fact casting doubt on the way
FIR was registered, is the delay caused in its receipt in the Court.
An endorsement contained in the original FIR states that it reached
the concerned Court on 27.08.1979, i.e., three days after the date
of the registration of the FIR. This endorsement is evident from the
original FIR document and reads “Sambandith Nyayalay Beja.”
13. Re: ocular witnesses: There are doubts about the conduct
and testimony of the eye-witnesses. The first such contradiction in
the testimony of PW-1 fundamentally challenges the premise that
PW-1 was an eye-witness. In his testimony, PW-1 initially denied
being a witness to the actual commission of the crime, stating that:
“The shot was fired, when I had gone inside.
When I brought an empty bottle, I saw accused
Vimal Kumar, Munua and Gullu fleeing. These
persons were fleeing southwards. When I saw
accused persons fleeing, I had reached in
verandah of the office.”
14. Later, in his cross-examination, PW-1 stated that: -
“It is not so that as soon as I reached near stairs
of the verandah carrying an empty bottle, the
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accused persons fired shots. And after firing
shots in my presence, the accused persons fled
15. The aforementioned contradictions in the evidence of PW-1
and significant improvements in the testimony, cast doubts about
his presence at the alleged place of occurrence of the crime. At least
one thing is clear, he has not witnessed the accused firing at the
16. The other concern relates to his presence at the police station.
PW-1 deposed that his thumb impression was taken on the FIR.
However, there is no such thumb impression at all on the
document. In addressing this contradiction, the Trial Court
concluded that,
“The statements referred to above were made
with a view to support the defence and I am
unable to place any reliance on the same.”
17. Another observation made on perusal of the evidence is that
PW-1 stated that he reached the Aliganj police station on foot,
remained there for about 25-30 minutes, and after that returned to
the village Giani by 8-9 p.m. This statement is curious, as the FIR
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itself was registered at 8:30 p.m. It is surprising then that PW-1,
who walked the distance of 3 km to the police station, reached there
well in time and observed the Deceased write the FIR, allegedly
signed it himself, had his statement recorded by the S.I., and after
that, concluded the return journey as well, all by 8-9 p.m. It is also
curious that he did not accompany the Deceased to the railway
station and eventually the hospital when he was in a critical
condition, given that he resided with the Deceased within the
campus and had been working there for 10-12 years.
18. Cumulatively, the abovementioned contradictions give rise to
suspicions about the eye-witness testimony of PW-1. Whether he
was present at the place of occurrence or accompanied the
Deceased to the police station at all, are in doubt as his statements
relating to the circumstances surrounding the place of occurrence
and the recording of the FIR have been found to be untrue, and his
conduct unnatural.
19. In similar vein, we notice unnatural conduct on part of the
eye-witness PW-6. PW-11 who examined PW-6 at the General
Hospital Bareilly, stated that the injuries on PW-6 were simple in
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nature. Despite this, immediately after the incident, PW-6, a doctor
who admittedly maintained close relations with the Deceased,
instead of being with the Deceased, went to his own house and
rested. Later, he accompanied the Deceased to the police station to
report the crime instead of escorting the Deceased to a hospital to
administer proper treatment, even when it has been admitted that
the Deceased was in a very serious condition, having suffered seven
gunshot injuries and oozing blood.
20. Re: place of occurrence: There is a great amount of
uncertainty about the place of occurrence of the crime. As per the
FIR, as well as the evidence of PW-1 and PW-6, the incident took
place in the passage in front of the verandah where the Deceased
and PW-6 were sitting in two chairs facing each other. It is at this
place that the accused are alleged to have fired at the Deceased
causing as many as seven gunshot injuries on his body. Inspector
Chob Singh (PW-7) who was cross-examined about the place of
occurrence has stated that he has not found blood spots on the
chair or the floor around the chair. This contrasts with the
testimony of PW-1, who, in his cross-examination, stated that when
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the Deceased was lying on the bullock cart in a cot, blood was
oozing out from him, which is relatable to the injuries sustained at
the place of occurrence.
21. It is unnatural that not even single drop of blood could be
traced or recovered from the chair or the floor where the Deceased
and PW-6 were sitting, casting a serious doubt about the veracity
of the prosecution’s story regarding the place of the incident. It is
common knowledge that a place where a severe bodily injury
occurs, it naturally leaves a trail of the incident9. It is also common
for the prosecution to collect proof of blood-stained earth, clothes,
or other materials, from where the incident would have occurred.
22. On this aspect there is only a tangential observation in
evidence of PW-6, who stated that the Deceased’s “injured body part
9 In Meghraj Singh v. State of U.P. [(1994) 5 SCC 188], this Court held, “13. ...The absence of any
blood in the field of Kirpal Singh as also the absence of blood trail from the field of Kirpal Singh
to the place where the dead body was found, as admitted by PW 8, also suggests that the
occurrence did not take place in the manner suggested by the prosecution and that the genesis
of the fight has been suppressed from the court...”.
A similar view was taken in the case of Ram Sewak and Ors. v. State of M.P. [(2004) 11 SCC 259],
wherein it was held, “14...We also notice that there is considerable doubt in regard to the place
of incident also. From the medical evidence we notice that the deceased suffered 3 major incised
wounds leading to the severance of the blood vessels and amputation of his hand near the wrist
and the body in question was lying at the spot till the police came which was nearly 4 to 5 hours
later but still the investigating agency was unable to find any blood on the spot. Of course, the
prosecution has given an explanation that after the incident in question it had rained but even
then it is difficult to believe that even traces of blood could not have been found on the soil in
spite of the rain. The absence of any such material also supports the prosecution case that the
incident in question might not have happened at the place of incident...” (emphasis supplied)
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had been wrapped with tehmand”. This statement fails to explain
the lack of any blood stains at the crime scene. This does not
explain why the said cloth, tehmand, was not produced by the
prosecution. Accordingly, we find that the prosecution’s failure to
explain recovery of blood on the chair or the place where the
Deceased was sitting when he was fired at seven times is fatal. The
non-production of blood-stained clothes is equally fatal.
23. Re: lack of material recoveries: In the present case, the
accused are alleged to have attacked the Deceased with the aid of
firearms, and the Deceased is supposed to have seven gunshot
wounds, yet the prosecution has failed to make material recoveries
from the place of the occurrence of the crime. The prosecution has
neither produced the empty cartridges from the scene of the crime,
nor the pellets from the Deceased's body. The prosecution has not
been able to recover any weapons alleged to have been used in the
incident. Further, it was incumbent upon the prosecution to
examine the ballistic experts to prove whether the gunshots came
from one or different guns. The prosecution however, failed to
examine ballistic experts or even produce the empty cartridges.
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Perhaps it is in the circumstance of lack of any recovery of empty
cartridges that the prosecution found it convenient not to examine
a ballistic expert. Lack of such material recoveries compounds
doubts about the story of the prosecution in the manner that they
have set out.
24. Re: inconsistencies in the two dying declarations: Finally,
as noted above, there are inconsistencies in the two dying
declarations of the Deceased, as to the motive of the crime, the
place of the incident, and the presence of other persons at such
place. The first dying declaration, the FIR, was recorded by the
Deceased at the police station on 24.08.1979. It states that at 6:30
p.m., the three accused came and fired at him and PW-6 with a
pistol because he was a witness in a case against A-2. The second
dying declaration, recorded by PW-5 after medical certification from
PW-9 on 25.08.1979, states that the incident took place in front of
the gate of his quarters, in front of which, A-3’s flour mill is located.
The three accused came from the flour mill, and A-1 and A-2 fired
a shot with a revolver while A-3 held him fastened. It also states
that, at the relevant time and place, his peon Sakhar Ali Beg and
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5-6 other persons were also present. Notably, he stated that he had
rusticated A-2 from college after he failed in the 11th standard, and
this motivated the crime.
25. The Trial Court rejected the statement made on 27.08.1979
as a dying declaration, noting that:
“The new facts introduced by Iqbal Bahadur
Saxena create a suspicion that this dying
declaration was a result of consultation and as
such I do not consider it safe to place reliance on
26. Without reversing this finding about the later dying
declaration, the High Court proceeded on the premise that in the
event of two dying declarations, the court may accept the one which
is recorded prior in point of time, and the corroboration of the first
dying declaration by the later declaration is only a rule of prudence.
27. In our opinion, the second dying declaration comprising far
too many additions and improvements, was correctly rejected by
the Trial and the High Court. The first declaration was recorded in
the police station, right before the Deceased left for the hospital in
a critical condition, without any certification of whether the
Deceased was medically fit to make a dying declaration. In fact, this
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is corroborated by the testimony of PW-8 who stated that the
Deceased was in a semi-conscious condition on his way to the
hospital. Further, PW-11 who examined the Deceased also stated
that his condition was serious. The dubitable circumstances in
which the FIR was recorded, sought to be treated as the first dying
declaration, have already been considered by us in the initial part
of our analysis. For all these reasons, we are of the opinion that it
is not safe to consider the FIR as a dying declaration as well.
28. In Mehiboobsab Abbasabi Nadaf v. State of Karnataka10, this
Court had similarly refrained from accepting any of the multiple
dying declarations in light of their manifest inconsistencies:
“7. Conviction can indisputably be based on a
dying declaration. But, before it can be acted
upon, the same must be held to have been
rendered voluntarily and truthfully. Consistency
in the dying declaration is the relevant factor for
placing full reliance thereupon. In this case, the
deceased herself had taken contradictory and
inconsistent stand in different dying
declarations. They, therefore, should not be
accepted on their face value. Caution, in this
behalf, is required to be applied.”
10 (2007) 13 SCC 112.
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29. Conclusions: Having considered the matter in detail, and
having noted that the prosecution failed to recover blood-stained
materials from the place of occurrence, empty cartridges, pellets,
or any other weapon used for commission of the crime, coupled
with the contradictions and unnatural conduct of the eye witnesses
PW-1 and PW-6, and the inconsistencies in the two dying
declarations, we believe that the prosecution has not proved the
case beyond a reasonable doubt, and the accused are entitled to be
given the benefit of doubt.
30. Accordingly, in the event of failure of the prosecution to prove
the case against the accused beyond the reasonable doubt, the
accused will be entitled to be acquitted from all the charges. In the
result, we pass the following order: -
i. Criminal Appeal Nos. 2224-2225 of 2010 is allowed.
ii. The judgment passed by the High Court of judicature at
Allahabad in Criminal Appeal Nos. 290 and 587 of 1981
dated 10.02.2010 and the judgment of the Sessions
Judge, Bareilly in Sessions Trial No. 420 of 1979 dated
31.01.1981 are quashed and set aside.
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iii. The appellants are acquitted of all the charges, and their
bail bonds stand discharged. Pending interlocutory
applications, if any, stand disposed of in terms of the
AUGUST 26, 2022 


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