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Reportable

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL     APPEAL     NO.1709     OF     2009   

SRI BHAGWAN      ….APPELLANT

VERSUS

STATE OF U.P.          ….RESPONDENT

J U D G M E N T

Fakkir Mohamed Ibrahim Kalifulla, J.

1. This appeal by the sole accused is directed against the  

judgment of the Division Bench of the High Court of Allahabad  

dated 28.11.2008 passed in Criminal Appeal No.2520 of 1982 by  

which the High Court confirmed the conviction and sentence of  

life imposed on the appellant for the offence under Section  

302, Indian Penal Code (IPC) by the Sessions Judge Agra in ST  

457 of 1981 in the judgment and order dated 06.09.1982.

2. Shorn of unnecessary details, the case of the prosecution was  

that on 26.05.1980 at 10.45 p.m. on hearing the cries of the  

deceased Yogender Nath Bhargava, Gurvanta Singh (PW-1) and  

Lalji Prasad-first informant (PW-3) rushed to the place of  

occurrence which was Dayalbagh bus stand where they witnessed  

the action of the accused in pouring acid on the body of the  

deceased.  It was also stated that while committing the said  

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offence, the accused was heard saying “I will pay your  

Rs.1,300/- today”.  It was the further case of the prosecution  

that on seeing the witnesses, the accused attempted to escape  

from the spot.  However, he was caught by the persons who were  

present at the spot.   

3. Both the deceased and the accused were stated to have been  

then brought to the police station by 11.10 p.m. where PW-3’s  

report (Exhibit Ka-2) was lodged based on which Exhibit Ka-3  

FIR was prepared by H.M. Shivraj Singh (PW-6) wherein the  

crime under Section 326, IPC was registered in the General  

diary (Exhibit Ka-14). ASI Raghu Nath Singh (PW-4) recorded  

the statement of the deceased who was injured at that point of  

time under Section 161, Criminal Procedure Code (Cr.P.C).  

Thereafter the injured was stated to have been sent to the  

District Hospital where he was examined by Dr. S.P. Mishra  

(PW-5) at 11.45 p.m. and the injury report was marked as  

Exhibit Ka-17. The injured stated to have breathed his last at  

9.40 p.m. on 27.5.1980 due to extensive burn injuries  

sustained by him.  Dr. S.P. Mishra (PW-5) who conducted the  

post-mortem on the body of the deceased issued Exhibit Ka-15,  

the report.  Thereafter, the crime was altered as one under  

Section 302, IPC. Raghu Nath Singh (PW-4) ASI inspected the  

place of occurrence, prepared a site plan (Exhibit Ka-5),  

collected materials such as acid bottle (Exhibit-1), Nausadar  

(Exhibit-2), gloves (Exhibit-4), and bag (Exhibit-3) from the  

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spot under memo (Exhibit Ka-17).  The inquest memo was marked  

as (Exhibit Ka-6).  Investigation was stated to have been  

subsequently taken over by S.H.O. Raj Pal Singh on 28.05.1980.

4. Charge-sheet was thereafter laid as Exhibit Ka-5. The articles  

recovered were sent for chemical examination and the chemical  

examination report was marked as Exhibit Ka-18.  The trial  

Court, on consideration of the evidence placed before it, both  

oral and documentary and the material objects, found the  

appellant guilty of the offence under Section 302, IPC and  

imposed upon him the sentence for life. The appellant’s appeal  

before the High Court having been dismissed, he has come  

forward with the present appeal before us.

5. Mr. M.P. Shoravala, learned counsel for the appellant in his  

submission contended that PWs-1 and 3 could not have witnessed  

the incident inasmuch as, in their version before the Court  

they stated that they only heard the deceased saying that the  

accused sprinkled acid on him.  According to the learned  

counsel, since the deceased had severe burn injuries in his  

tongue, he was incapable of making any statement and,  

therefore, the alleged dying declaration in the form of  

Section 161 statement recorded by Raghu Nath Singh (PW-4) ASI  

cannot be true. Learned counsel contended that as per para 115  

of Police Regulations, the 161 statement, if were to be  

treated as a dying declaration, the same should have been done  

in the presence of two respectable witnesses in which the  

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signature or mark of the declarant and the witnesses at the  

foot of the declaration should have been obtained.  Since the  

said requirement was not fulfilled, the said statement could  

not have been relied upon by the trial Court as well as the  

High Court.  It was then contended that absence of acid mark  

on the accused belied the case of the prosecution.  It was  

also contended that the arrest of the accused was suppressed.  

According to the learned counsel for the appellant, PW-3 was a  

stock witness and, therefore, his version could not have been  

relied upon.  He also contended that on 25.05.1980, the death  

ceremony of the appellant’s father was held and, therefore, in  

that situation the appellant would not have been in a mood at  

all to commit a heinous crime of murder of the deceased.  

According to the learned counsel, if the deceased had suffered  

such extensive burn injuries due to acid attack, he would not  

have been in a position to make such a long statement as was  

recorded by PW-4.  The learned counsel also argued that since  

in the site plan, no light post was marked and since the  

occurrence had taken place at 10.45 p.m., there would have  

been no scope at all for PWs-1 and 3 to have witnessed any  

incident as stated by them. Learned counsel contended that the  

so-called dying declaration recorded by PW-4 was not  

admissible in evidence.  The learned counsel, therefore,  

contended that the evidence does not confirm the offence  

alleged against the appellant.

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6. As against the above submissions, Mr. Ratnakar Dash, learned  

senior counsel submitted that the very fact that the FIR was  

lodged at 11.10 p.m. at the instance of PWs 1, 2 and 3 who  

brought accused as well as the deceased to the police station  

were all factors relevant to show that the case of the  

prosecution was truly projected before the Court. Learned  

senior counsel submitted that PWs-1 and 2 were guarding the  

area in the night and when they happened to hear the cries of  

the deceased to which they responded by rushing to the spot  

which was just 30 steps ahead of their way and with the aid of  

the street lights, they were able to witness the occurrence as  

narrated by PW-3 in his report pursuant to which the FIR came  

to be registered. Learned senior counsel also submitted that  

when the appellant attempted to escape from the spot, he was  

caught by the persons standing nearby and thereafter brought  

to the police station along with the deceased. Learned counsel  

contended that such natural course of events having been  

accepted by the Court with the aid of the evidence of the eye  

witnesses and the declaration made by the deceased who was in  

the injured state at that point of time before PW-4 and having  

regard to the exceptional circumstances stipulated under  

Section 161 (2) Cr.P.C., the said statement was validly relied  

upon as the dying declaration of the deceased himself falling  

under Section 32 (1) of the Evidence Act and, therefore, the  

reliance placed upon the said dying declaration of the  

deceased was unquestionable.  The learned senior counsel  

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submitted that PWs-1, 2 and 3 were all strangers and they had  

no reason to implicate the accused to the offence.  He also  

pointed out that PW-3 was working as a Peon in the District  

Court and his statement was fully reliable.  According to the  

learned senior counsel, both the Courts accepted the version  

of PWs1 to 3 inasmuch as they had no axe to grind against the  

accused and they were also not related to the deceased in  

order to state that they were interested witnesses.  Learned  

senior counsel relied upon the decision reported in Jai  

Prakash and Others v. State of Haryana - 1998 (7) SCC 284 in  

support of his submission.

7. Having heard learned counsel for the appellant as well as  

learned counsel for the respondent and having bestowed our  

serious consideration to the respective submissions and the  

materials placed on record and the impugned judgments, we find  

the substantial contention made on behalf of the appellant was  

that PW1 and 3 could not have witnessed the incident and that  

having regard to the nature of the injuries sustained by the  

deceased, he could not have made a statement under Section 161  

Cr.P.C.  It is the further contention that even if the  

statement can be said to have been made by the deceased, the  

same cannot be treated as a dying declaration for non-

fulfillment of the statutory requirements and that the absence  

of the acid marks on the accused belied the case of the  

prosecution. One other submission made on behalf of the  

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appellant which also requires to be considered is that PWs -1  

and 3 were stock witnesses and, therefore, their version could  

not have been relied upon.   

8. When we consider the said submission of the appellant in  

seriatim, in support of the submission that PWs1 and 3 were  

stock witnesses, the learned counsel relied upon the decisions  

reported in Babudas v. State of M.P. - 2003 (9) SCC 86, Baldev  

Singh v. State of Punjab - 2009 (6) SCC 564.  At the very  

outset, it will have to be stated that except submitting that  

PWs-1 and 3 were stock witnesses, nothing more was pointed out  

by learned counsel to support the said contention. Further  

when we examine the deposition of the said witnesses it  

disclose that they were actually guarding the area as members  

of the residential colony. According to them, the place of  

occurrence, namely, the bus stand of Dayalbagh is at a  

distance of about 250 yards from their colony.  They also  

stated that when they heard the pathetic cries of the  

deceased, they could notice the accused assaulting the  

deceased which they were able to see from the street light  

brightness and that when they rushed towards the deceased, the  

accused who was throwing acid on the deceased started fleeing  

and that as they shouted at him, the passersby caught hold of  

the accused and that is how they were able to bring the  

deceased as well as the accused to the police station.  

Nothing was put in cross examination to state that these  

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witnesses had either tendered evidence at the instance of the  

police in any other criminal case or even a suggestion that  

they were stock witnesses of the police. There is nothing on  

record to show that these witnesses had earlier deposed in any  

other criminal case in order to even remotely suggest that  

they were being used as stock witnesses by the police  

authorities.

9. Keeping the above factors in mind, when we examine the  

decision relied upon reported as Babudas (supra), this Court  

has noted that PW-17 in that case was a stock witness who was  

appearing as witness for recovery on behalf of the prosecution  

even as far back as in the year 1965 and that admittedly the  

prosecution was using him as a stock witness and it was in  

those circumstances that this Court held that there should be  

a cautious approach in relying upon the testimony of such a  

stock witness.  In the decision reported in Baldev Singh  

(supra) it was noted that PW-22 in that case was examined by  

the police authorities in some other case and that a  

suggestion was put to him that he was a police tout.  It was,  

therefore, held that his evidence cannot be relied upon.   

10. In the light of the said peculiar facts involved in those  

two cases, we find no scope to apply those decisions to the  

facts of this case.  It can be stated that as per the version  

of PWs-1 and 3 while they were guarding the area as  

responsible residents of a nearby colony they heard the cries  

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of the deceased and they rushed to the place of occurrence to  

help the deceased when they were able to witness the act of  

the appellant in sprinkling acid on the deceased and the  

attempt of the appellant to flee from the scene of occurrence  

which was successfully thwarted by the witnesses along with  

others standing nearby. Their statement in narrating the  

incident in such a sequence was really convincing and that it  

was quite natural and acceptable in every respect without  

giving room for any doubt.  Moreover, as rightly pointed out  

by learned counsel for the respondent, they were not  

interested in any manner in the deceased. They were total  

strangers and their presence as claimed by them was justified  

in every respect and, therefore, there was no room to doubt  

their version in having stated that it was the appellant who  

was responsible for causing acid injury on the deceased. The  

said submission of the learned counsel for the appellant,  

therefore, does not merit acceptance.  

11. It was also submitted by learned counsel for the appellant  

that PWs1 and 3 could not have witnessed the incident inasmuch  

as they stated that they only heard the cries of the deceased  

about inflicting of the injury by pouring acid by the accused  

on him and did not see the act of pouring acid on the deceased  

by the appellant. Even here we find that the said statement  

made by  PWs-1 and 3 does not in any way dilute their earlier  

statement that on hearing the cries of the deceased, they  

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rushed to the place of occurrence when they noticed the  

accused attacking the deceased by sprinkling acid on him.  

After reaching the spot they also heard from the deceased that  

the accused sprinkled acid on him.  The reference to such  

statement of the deceased by the witnesses only strengthened  

their earlier version of having seen the appellant throwing  

acid on the deceased.  Therefore, the version of PWs1 and 3  

about the statement of the deceased on this aspect in no way  

contradict their statement of having seen the appellant  

assaulting the deceased by sprinkling acid. The said  

submission also, therefore, does not merit any consideration.  

12. The next submission of the learned counsel for the appellant  

was that since the deceased suffered acid injury in his  

tongue, he was incapable of making any statement and,  

therefore, the alleged statement under Section 161 Cr.P.C.  

stated to have been recorded by PW-4 cannot be true. In this  

context, it will be worthwhile to refer to the post-mortem  

report Exhibit Ka-13.  The said report mentioned the ante-

mortem injuries as under:-

“superficial burn on whole face, neck, front of  cheeks, abdomen, whole back of both bottocks, both  upper extremities right front of hip, whole tongue,  undersurface of cheeks and orphornex, leather marks  appearance  (illegible)”

13. While referring to the said report and the injuries, it is  

also necessary to refer to the evidence of the doctor who  

issued Ka-13, namely, Dr. S.P. Mishra (PW-5). In the chief  

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examination, PW-5 stated that even after sustaining the above  

mentioned injuries, the injured could have lived in  

consciousness for half an hour to an hour.  In the cross  

examination, though PW-5 stated that the deceased might have  

suffered grave and severe agonies, nothing was suggested to  

him that he was not in a position to speak or make any  

statement.  In the injury report Exhibit Ka-17 also it is  

noted that superficial burn injuries were found among other  

parts of the body as well as in the tongue.  It was also  

mentioned therein that the burnt areas where in multiple  

patches and it was mentioned that they were of leather  

appearance with a distinct demarcation between burnt and  

normal skin. A conspectus consideration of the injury report  

(Exhibit Ka-17) with post-mortem report (Exhibit Ka-13) and  

the oral evidence of Dr. S.P. Mishra (PW-5) amply show that  

the deceased was fully conscious immediately after the attack  

on him and that such conscious position remained for at least  

half-an-hour to one hour.  As per the evidence available on  

record, while the occurrence took place at 10.45 p.m. the  

deceased along with the accused were brought to the police  

station by 11.10 p.m.  PW-4 the ASI who recorded the statement  

of the deceased made it clear that having regard to the  

condition of the deceased, he quickly recorded the statement  

within 10 minutes in order to send him to the hospital to get  

him treated.  The above factors go to show that the statement  

as recorded by PW-4 of the deceased was true and, therefore,  

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the submission that the deceased was not in a position to make  

the statement cannot be accepted. In fact PWs1 and 3 in one  

voice stated that they heard the cries of the deceased after  

the attack.  If the deceased was in a position to make a long  

cry after the acid attack, it can be safely concluded that he  

would have definitely be in a condition to explain to the  

police officer the manner in which the occurrence took place.  

We, therefore, reject the said submission of the learned  

counsel for the appellant that the statement of the deceased  

as recorded by PW-4 was not true.  

14. Once we steer clear of the said hurdle then the question  

arises as to whether the said statement can be accepted as a  

dying declaration as has been done by the trial Court and as  

approved by the Division Bench of the High Court. The trial  

Court while dealing with the contention made on behalf of the  

appellant for not to rely upon the 161 statement of the  

deceased as a dying declaration rejected the said argument in  

so many words:

“30. Regarding the dying declaration of the  deceased I have already mentioned that there are two  sets of dying declaration, one which was made by the  deceased before the witnesses immediately after the  incident and the other recorded by the investigating  officer at the police station u/s 161 Cr.P.C. The  learned counsel for the defence criticised the dying  declaration on the point that the investigating  officer himself introduced certain facts in it while  recording the statement u/s 161 Cr.P.C. by adding  the names and the addresses of the assailant and the  victim on the basis of the written report, Ex.Ka2  due to which he argued that the same was not at all  

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reliable. In this regard I find that 1979 Cr.L.J  1031, Tihari Singh vs. State of Punjab, is contrary,  in which it has been held that the Head Constable  who recorded the dying declaration had stated in his  evidence that he put the question to the deceased  and recorded his answers. He also added that he  recorded what the deceased stated “in his own way”.  It does not mean that he recorded something other  than what the deceased stated. All that it meant was  that the language was his, but the substance was  that of the deceased. In the circumstances, no  infirmity was attached to the dying declaration on  that account. I also find that the dying declaration  alleged to have been made by the deceased in  presence of the witnesses, remains still unaffected  by the argument of the defence counsel, and in any  case, the presence of the witnesses of fact at the  place of the incident immediately after its  occurrence, can not be doubted for the reasons  mentioned above.”

15. The High Court also rejected the said submission for not  

relying upon the 161 statement which otherwise turned out to  

be the dying declaration of the deceased.  Before us, for the  

first time it was contended on behalf of the appellant that  

the said statement cannot be accepted as a dying declaration  

for the reason that it was not attested by two respectable  

witnesses as is required in para 115 of the police  

regulations.  The said paragraph 115 reads as under:

“115.The officer investigating a case in which a  person has been so seriously injured that he is  likely to die before he can reach a dispensary where  his dying declaration can be recorded should     himself    record     the     declaration     at     once     in     the     presence     of    two     respectable     witnesses  , obtaining the signature  or mark of the declarant and witnesses at the foot  of the declaration.”

           [emphasis supplied]

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16. A reading of the said paragraph appears to be a guideline  

issued to the investigating officers as to the precautions to  

be taken while recording a dying declaration.  It was stated  

therein that such declaration can be recorded by the  

investigating officer himself in the presence of two  

respectable witnesses and obtain the signature or mark of the  

declarant and the witnesses at the foot of the declaration.  

In the first place, such a guideline in the form of police  

regulation can have no impact on any superior statutory  

prescription. Leaving aside such a proposition which does not  

require to be considered in this case, the said para 115 will  

apply only in a grave situation where the victim is seriously  

injured and it would be impossible compliance of Section 32  

(1) of the Evidence Act in its full rigour.  Such guidelines  

have been issued to insure that at least the basic requirement  

of recording such a dying declaration in the presence of two  

respectable persons as witnesses while obtaining the signature  

or mark of the victim himself. It is relevant to note that the  

said paragraph 115 makes a specific reference to the recording  

of the dying declaration in which event alone such precautions  

have to be ensured by the investigating officers and not when  

Section 161 statement is recorded which does not require the  

signature of the author of the statement.

17. While keeping the above prescription in mind, when we test  

the submission of the learned counsel for the appellant in the  

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case on hand at the time when 161 Cr.P.C. statement of the  

deceased was recorded, the offence registered was under  

Section 326, IPC having regard to the grievous injuries  

sustained by the victim.   PW-4 was not contemplating to  

record the dying declaration of the victim inasmuch as the  

victim was seriously injured and immediately needed medical  

aid. Before sending him to the hospital for proper treatment  

PW-4 thought it fit to get the version about the occurrence  

recorded from the victim himself that had taken place and that  

is how Exhibit Ka-2 came to be recorded. Undoubtedly, the  

statement was recorded as one under Section 161 Cr.P.C.  

Subsequent development resulted in the death of the victim on  

the next day and the law empowered the prosecution to rely on  

the said statement by treating it as a dying declaration, the  

question for consideration is whether the submission put forth  

on behalf of the respondent counsel merits acceptance.

18. Mr. Ratnakar Dash, learned senior counsel made a specific  

reference to Section 162 (2) Cr.P.C. in support of his  

submission that the said section carves out an exception and  

credence that can be given to a 161 statement by leaving it  

like a declaration under Section 32(1) of the Evidence Act  

under certain exceptional circumstances.  Section 162 (2)  

Cr.P.C. reads as under:

“162. (2) Nothing in this section shall be deemed to  apply to any statement falling within the provisions  of clause (1) of section 32 of the Indian Evidence  

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Act, 1872 (1 of 1872), or to affect the provisions  of section 27 of that Act.”

19. Under Section 32(1) of the Evidence Act it has been provided  

as under:-

“32. Cases in which statement of relevant fact by  person who is dead or cannot be found, etc., is  relevant-Statements, written or verbal, of relevant  facts made by a person who is dead, or who cannot be  found, or who has become incapable of giving  evidence, or whose attendance cannot be procured  without an amount of delay or expense which, under  the circumstances of the case, appears to the Court  unreasonable, are themselves relevant facts in the  following cases:-

(1) When it relates to cause of death.- When the  statement is made by a person as to the cause of his  death, or as to any of the circumstances of the  transaction which resulted in his death, in cases in  which the cause of that person's death comes into  question.  

Such statements are relevant whether the person  who made them was or was not, at the time when they  were made, under expectation of death, and whatever  may be the nature of the proceeding in which the  cause of his death comes into question.”  

20. Going by Section 32(1) Evidence Act, it is quite clear that  

such statement would be relevant even if the person who made  

the statement was or was not at the time when he made it was  

under the expectation of death. Having regard to the  

extraordinary credence attached to such statement fall under  

Section 32(1) of the India Evidence Act, time and again this  

Court has cautioned as to the extreme care and caution to be  

taken while relying upon such evidence recorded as a dying  

declaration.

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21. As far as the implication of 162 (2) of Cr.P.C. is  

concerned, as a proposition of law, unlike the excepted  

circumstances under which 161 statement could be relied upon,  

as rightly contended by learned senior counsel for the  

respondent, once the said statement though recorded under  

Section 161 Cr.P.C. assumes the character of dying declaration  

falling within the four corners of Section 32(1) of Evidence  

Act, then whatever credence that would apply to a declaration  

governed by Section 32 (1) should automatically deemed to  

apply in all force to such a statement though was once  

recorded under Section 161 Cr.P.C.  The above statement of law  

would result in a position that a purported recorded statement  

under Section 161 of a victim having regard to the subsequent  

event of the death of the person making the statement who was  

a victim would enable the prosecuting authority to rely upon  

the said statement having regard to the nature and content of  

the said statement as one of dying declaration as deeming it  

and falling under Section 32(1) of Evidence Act and thereby  

commend all the credence that would be applicable to a dying  

declaration recorded and claimed as such.  

22. Keeping the above principle in mind, it can be stated  

without any scope for contradiction that when we examine the  

claim made on the statement recorded by PW-4 of the deceased  

by applying Section 162 (2), we have no hesitation in holding  

that the said statement as relied upon by the trial Court as  

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an acceptable dying declaration in all force was perfectly  

justified. We say so because no other conflicting circumstance  

was either pointed out or demonstrated before the trial Court  

or the High Court or before us in order to exclude the said  

document from being relied upon as a dying declaration of the  

deceased. We reiterate that having regard to the manner in  

which the said statement was recorded at the time when the  

crime was registered originally under Section 326 IPC within  

the shortest time possible within which it could be recorded  

by PW-4 in order to provide proper medical treatment to the  

deceased by sending him to the hospital, with no other  

intention pointed out at the instance of the appellant to  

discredit contents of the said statement, we hold that the  

reliance placed upon the said statement as the dying  

declaration of the deceased was perfectly justified.  Having  

regard to our above conclusion, the said submission of the  

learned counsel for the appellant also stands rejected.   

23. The other submission of learned counsel for the appellant  

was that the absence of the acid marks on the body of the  

accused belies the case of the prosecution.  At the very  

outset, it will be relevant to note that the recovery memo  

Exhibit Ka-1 disclose recovery of gloves which were marked as  

exhibit 4 before the trial Court. The chemical report marked  

as Ka-18 discloses the rubber gloves apparently used by the  

appellant while carrying out the offence of pouring acid on  

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the deceased. Exhibit Ka-18 discloses that the burnt pieces of  

rubber gloves had the content of acid on it.  Therefore, when  

the appellant had taken every precaution to ensure that while  

throwing acid on the deceased, he was not injured in any  

manner, the absence of any such injury on him can have no  

effect in the case of the prosecution.   

24. The other argument was that the appellant lost his father  

and that on the day of occurrence he attended the ceremony in  

memory of his father and that when he was in such a distress  

situation, he would not have committed the offence of murder.  

We do not find any substance in the said feeble submission in  

order to deal with the same in very many details.   

25. The other discrepancies pointed out such as the street light  

was not shown in the site plan and, therefore, PWs 1, 2 and 3  

could not have witnessed the incident, that the gloves were  

not seized and that the appellant was a small grocery shop  

owner and there was previous criminal background and,  

therefore, the appellant could not indulge in such a crime to  

pour acid on the face of the deceased are all arguments of  

desperation. Further some such submissions are all trivial  

factors submitted before us which we find do not in any way  

affect the case of the prosecution which was fully established  

by legally acceptable evidence placed before the Courts below.  

26. Reliance was placed upon Ravikumar alias Kutti Ravi v. State  

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of T.N. - 2006 (9) SCC 240 for the proposition that fully  

supports the case of the prosecution wherein this Court held  

“once the Court is satisfied that the declaration is true and  

voluntary, it undoubtedly, can base its conviction on the  

dying declaration without any further corroboration.  It  

cannot be laid down as an absolute rule of law that the dying  

declaration cannot form the sole basis unless it is  

corroborated. The rule requiring corroboration is merely the  

rule of prudence”.

27. As in the case on hand we have found that the statement  

under Section 161 Cr.P.C. which was relied upon as dying  

declaration, fulfilled the requirement, every provision of the  

law and fact. We, therefore, find that the said judgment fully  

supports the case of the prosecution in affirming the  

conviction imposed on the appellant.

28. Reliance was placed upon the decision in Suresh Chaudhary v.  

State of Bihar - 2003 (4) SCC 128 for the proposition that  

though IO seized certain mattresses and durries from the place  

of the incident which were bloodstained, and the same were not  

sent to the chemical examiner and this failure added to the  

list of suspicions pointed out by the defence.

29. The relevant conclusion in para 12 of the said decision is  

to the following effect:

“12…………..Then again we notice, though PW 13, the IO  stated in his evidence that he has seized certain  

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Page 21

mattresses and durries from the place of the  incident which were bloodstained, the same were not  sent to the Chemical Examiner for establishing the  fact that these durries seized from the place of the  incident were actually used by the victims which  might have supported the prosecution case if the  bloodstains were to be proved to be that of the  victims. This failure also adds to the list of  suspicions pointed out by the defence. All     these    omissions     and     contradictions     also     add     to     the     list     of    doubtful     circumstances     pointed     out     by     the     defence     in    the     prosecution     case  .”

(Emphasis added)

30. In the said decision the version of the sole eye witness was  

not relied upon inasmuch as he was found to be an interested  

witness and the other evidence also did not support the case  

of the prosecution.  There was also inordinate delay in  

sending report to the Magistrate under Section 157 (1) Cr.P.C.  

The failure on the part of the prosecution to recover the  

weapons was one other relevant factor which was referred to in  

order to set aside the conviction.  Therefore, apart from not  

sending the recovered blood stained material for chemical  

examination, there were various other serious infirmities in  

that case which all put together persuaded this Court to  

interfere with the conviction. We, therefore, do not find any  

support from the said decision. Not sending of the clothes of  

the deceased for chemical examination is an isolated factor  

which should not cause any dent in the case of the prosecution  

when the case of the prosecution was otherwise established by  

abundant legal evidence.  Therefore, the said decision also  

does not persuade us to interfere with the conviction and  

sentence imposed on the appellant.   

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31. Having regard to our above conclusion, we do not find any  

merit in the appeal.  The appeal fails and the same is  

dismissed.

          .......................J. [Swatanter Kumar]

 ..............................J.

     [Fakkir Mohamed Ibrahim Kalifulla]

New Delhi; December 6, 2012

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ITEM NO.1B               COURT NO.8             SECTION II

           S U P R E M E   C O U R T   O F   I N D I A                          RECORD OF PROCEEDINGS                  CRIMINAL APPEAL NO(s). 1709 OF 2009

SRI BHAGWAN                                       Appellant (s)

                VERSUS

STATE OF U.P.                                     Respondent(s)

Date: 06/12/2012  This Appeal was called on for pronouncement of      judgment today.

For Appellant(s) Mr. M.P. Shorawala,Adv.

For Respondent(s) Mr. Anuvrat Sharma,Adv.

Hon'ble Mr. Justice Fakkir Mohamed  Ibrahim Kalifulla pronounced the judgment of  the Bench comprising of Hon'ble Mr. Justice  Swatanter Kumar and His Lordship.

Appeal is dismissed in terms of the  signed reportable judgment.

     (O.P. Sharma)        (M.S. Negi)  Court Master                      Court Master

  (Signed reportable judgment is placed on the file)

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