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 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 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 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.
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 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 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 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
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 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 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, 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 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]
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 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 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.
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 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 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 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 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.
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
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)
