# Hari Shanker & Anr v. State of U.P

- **Citation:** (2020) 1 ILRA 114
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-11-16
- **Case number:** Criminal Appeal No. 1723 of 1996
- **Bench:** Narendra Kumar Johari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/hari-shanker-anr-v-state-of-u-p-45119
- **Pages:** 18

## Headnote

Criminal Law - Indian Penal Code -
Sections 148, 323/149 and 307/149 -
Appeal against conviction.

The role of all the accused persons has not been
shown in F.I.R. Therefore, evidence of prosecution
witness is not believable as they are afterthoughts
and taught by legal experts. (para 36)

It can be said that F.I.R. is not an encyclopedia
of the details of crime. It is not necessary that
it should set out minute details of occurrence.
If the fact narrated in F.I.R. indicates that a
crime has been committed and facts mentioned
in F.I.R. are in consonance with facts reflected
from evidence on record then in that case
accused may not take the plea that there is no
detailed description in F.I.R. (para 37)

Injury report of injured persons indicates that
they have received the injury of firearm. The
genuineness of medical reports/injury reports
have not been disputed by accused persons. It
was duty of I.O. to recover the incriminating
articles. If, I.O. has failed to recover the
weapons used may or may not be with
intention to provide benefit to accused persons,
then in that case prosecution case will not be
affected adversely. The injuries of above
persons have been narrated in the oral
evidences of prosecution witnesses PW-1 to
PW-3. (para 41)

According to law, if eye witnesses who received
injury in the course of occurrence, if their
evidences
are
not
contradictory
and
is
believable, it will not be necessary in every
case to produce independent witnesses. Quality
of witness is needed not quantity. (para 47)
Prosecution has succeeded to prove the
charges against appellants without any shadow
of doubt. (para 49)

Appeal is dismissed. (E-2)

List of cases cited: -

## Text

_Characters 0–39,071 of 59,112. This is a partial read: ask again with offset=39071 for what follows._

114 INDIAN LAW REPORTS ALLAHABAD SERIES
imprisonment. The impugned judgment
and order of the Trial Court is modified to
that extent only with respect to appellant
Kamlendra, who is in jail as on date. The
conviction and sentence of appellant
Kamlendra Dwivedi for the offence under
sections 498A, 201 IPC and Section 4 of
the Dowry Prohibition Act shall remain
the same as was awarded by the trial Court
and the judgment of the trial court is
affirmed to this extent. The appeal filed by
appellant Kamlendra Dwivedi is this
partly allowed.

31. In view of the foregoing
discussions, we order as follows:-

(i) Criminal appeal Nos. 254 of
2010 and 886 of 2010 are allowed. The
recorded conviction of the appellants
Raghvendra, Krishnanand, Smt. Usha
Devi and Smt. Poonam Devi and the
sentences awarded to them under Sections
304-B, 498 A and 201 IPC and Section 4
of Dowry Prohibition Act, are hereby set
aside.
Appellants
Raghvendra,
Krishnanand, Smt. Usha Devi and Smt.
Poonam Devi are acquitted of all the
charges levelled against them.

They are on bail, they need not
to surrender. Their bail bonds are
cancelled and their sureties are discharged.

However, they will comply with
the provisions of Section 437-A of Code
of Criminal Procedure and file two sureties
each to the satisfaction of the trial Court
concerned in the trial Court within one
month from today.

(ii) Criminal appeal No. 941 of
2010 also succeeds and is allowed in part.
The recorded conviction of the appellantKamlendra under Sections 304-B, 498A
and 201 IPC is upheld, but the awarded
sentence of life imprisonment to him under
section 304-B I.P.C. is reduced to 12
years'
rigorous
imprisonment.
The
Sentence awarded by the trial Court
pertaining to Section 498A and 201 IPC,
as well as under Section 4 of the Dowry
Prohibition Act shall remain the same as
awarded by the trial Court.

He will also get the benefit of
Section 428 of the Cr.P.C. He is detained
in prison and he will serve out the sentence
awarded by the trial Court as altered by
this court.

In case appellant Kamlendra has
served out the imprisonment awarded by
the trial Court as altered by this Court, he
will be released from the prison if he is not
liable to be detained in any other case. He
will also comply with the provisions of
Section 437-A of Code of Criminal
Procedure and file two sureties to the
satisfaction of the trial Court concerned in
the trial Court within one month from his
release from the prison today.

The record of the trial Court
along with a copy of this Judgment be sent
to the trial Court, at the earliest.
----------
(2020)1ILR A114

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 16.11.2019

BEFORE
THE HON'BLE NARENDRA KUMAR JOHARI, J.

Criminal Appeal No. 1723 of 1996

Hari Shanker & Anr. ...Appellants
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Sri Arun Kumar Shukla, Sri Ram Chandra
Uttam
1 All. Hari Shanker & Anr. Vs. State of U.P.
115
Counsel for the Respondent:
A.G.A.

Criminal Law - Indian Penal Code -
Sections 148, 323/149 and 307/149 -
Appeal against conviction.

The role of all the accused persons has not been
shown in F.I.R. Therefore, evidence of prosecution
witness is not believable as they are afterthoughts
and taught by legal experts. (para 36)

It can be said that F.I.R. is not an encyclopedia
of the details of crime. It is not necessary that
it should set out minute details of occurrence.
If the fact narrated in F.I.R. indicates that a
crime has been committed and facts mentioned
in F.I.R. are in consonance with facts reflected
from evidence on record then in that case
accused may not take the plea that there is no
detailed description in F.I.R. (para 37)

Injury report of injured persons indicates that
they have received the injury of firearm. The
genuineness of medical reports/injury reports
have not been disputed by accused persons. It
was duty of I.O. to recover the incriminating
articles. If, I.O. has failed to recover the
weapons used may or may not be with
intention to provide benefit to accused persons,
then in that case prosecution case will not be
affected adversely. The injuries of above
persons have been narrated in the oral
evidences of prosecution witnesses PW-1 to
PW-3. (para 41)

According to law, if eye witnesses who received
injury in the course of occurrence, if their
evidences
are
not
contradictory
and
is
believable, it will not be necessary in every
case to produce independent witnesses. Quality
of witness is needed not quantity. (para 47)
Prosecution has succeeded to prove the
charges against appellants without any shadow
of doubt. (para 49)

Appeal is dismissed. (E-2)

List of cases cited: -

1. Sahdev Prasad Shah Vs. St. of Bihar 1999
Supreme (Patana) 615
2. Ganesh Ram @ Ganesh Chamar Vs. St. of
Bihar 1989 Law Suit (Pat) 62 (D.B.)

3. Surjit Singh @ Gurmit Singh Vs. St. of Punj.
1993 SCC (Cri) 161

4. Dharampal and others Vs. St. of U.P. 2008
Cr.L.J. 1016

5. Akhtar and others Vs. St. of Uttaranchal SCC
(Cri) 1590 of 2007

6. Siddiq and ors. Vs. St. 1981 AWC (80)

7. Madan Shah Vs. St. of Bihar 1997 S.C.C.
Online Patana 543

8. Shanker Shah & ors. Vs. St. of Bihar 2007
Cr.L.J. 355

9. Pandurang Chandrakant Mhatre & ors. Vs.
St. of Mah. (2010) 1 S.C.C. 413

10. St. of Punj. Vs. Hakam Singh, Appeal (Crl.)
130 of 2000

11. Hardev Singh & ors. Vs. Harbhej Singh and
others 1996 94) Crimes 216 (S.C.)

12. Rizan & ors. Vs. St. of Chattisgarh (Supra)

(Delivered by Hon'ble Narendra Kumar
Johari, J.)

1. Present appeal has been filed
against the judgment and order dated
30.08.1996 passed by Special/Additional
Sessions Judge, Fatehpur convicting the
appellants-Hari
Shanker
and
Radhey
Shyam under Section 148, 323/149 and
307/149 of Indian Penal Code (hereinafter
referred to as "I.P.C.") and sentencing the
appellants to undergo six months' rigorous
imprisonment under Section 148 I.P.C.,
further six months' rigorous imprisonment
under Section 323/149 I.P.C. and two
years' rigorous imprisonment with a fine
of Rs.2000/- each under Section 307/149
I.P.C. in Session Trial No.85 of 1988
116 INDIAN LAW REPORTS ALLAHABAD SERIES
(State and others Vs. Hari Shanker and
others), Police Station-Jahanabad, DistrictFatehpur.

2. The case of the prosecution in brief is
that Ram Kishore Uttam has given a Tahrir to
S.O., Jahanabad on 29.11.1986 that at about
08:00 a.m. in Village-Lahuri Sarai, in front of
northern gate of the factory of complainant;
Hari Shanker and Radhey were raising
construction of shop. One Pramod Kumar
asked and prohibited not to do so. Annoyed
of it, Hari Shanker, Radhey, Bhagween Deen,
Raj Kumar and Bhikhari Neta, residents of
Sarai Dharampur and some other outsiders
armed with guns, pistols, lathi and danda
attacked the family members of complainant
with common intention. As a result of which,
Vinod Kumar, Pramod Kumar, Bachchi Lal,
Km. Shyam Shree, Km. Shyam Kali and Km.
Manju Devi received injuries. On hearing the
noise, the residents of the same village Gulab
and Ram Kumar reached on spot and saw the
incident.

3. On the basis of Tahrir, F.I.R. was
lodged on the same date at about 09:30
a.m. under Crime No.254/86, under
Sections 147, 148, 149, 307 I.P.C. with
entry in G.D.

4. The investigation of occurrence
was
entrusted
to
Sub-Inspector-U.B.
Singh. Injured persons were sent to
primary
health
centre
for
medical
examination.
Investigating
Officer
prepared
the
spot
map
and
after
investigation he has submitted chargesheet against Hari Shanker, Radhey Lal,
Bhagwandeen, Raj Kumar. Bhikhari Neta
was summoned under Section 319 Cr.P.C.

5.

As
documentary
evidence
prosecution filed Tahrir (Ex. Ka-1) which
has been proved by witness PW-1. Apart
from that, following papers have also been
filed by prosecution whose genuineness
has been admitted by learned counsel for
accused persons and endorsed accordingly.
Consequently, the papers were exhibited
accordingly;

Chik F.I.R. (Ex. Ka-2), Corban
Copy of G.D. dated 29.11.1986 (Ex. Ka3), Site Plan ( Ex. Ka-4),Injury Report of
Km. Shyam Shree (Ex. Ka-5),Injury report
of Km. Shyam Kali (Ex. Ka-6),Injury
Report of Km. Manju Devi (Ex. Ka-7),
Injury Report of Bachchi Lal (Ex. Ka-8),
Injury Report of Vinod Kumar (Ex. Ka-9),
Injury Report of Pramod Kumar (Ex. Ka10), Charge-sheet (Ex. Ka-11).

6. As oral evidence for prosecution
witnesses Ram Kishor as PW-1, Bachchi
Lal as PW-2 and Km. Shyam Shree
deposed as PW-3, since learned counsel
for the prosecution has admitted the
genuineness of prosecution paper as
mentioned above, the evidence of relative
formal witness as were dispensed with by
the court considering the endorsement of
Counsel for defence.

7. On the other hand, learned counsel
for the accused persons submitted Panch
Nirnay (Ex. Kha-1), Receipt of postal
department dated 06.05.1986 (Ex. Kha-2),
Extract of statement of Ram Kishore PW-1
(Ex. Kha-2 & 3), Extract of statement of
Bachchi Lal (Ex. Kha-4 to 7)), Extract of
statement of Shyam Shree (Ex. Kha-8 to
11). Apart from that with list 11 Kha/1,
paper no.11 Kha/3 Certified Copy of
F.I.R., Crime No. 254-A 11 Kha/4 under
Sections 147, 148, 149, 349, 336 I.P.C.
and Certified Copy of Injury Report of
Rajeshwati , 11 Kha/5 (Ex. Kha-13),
Certified Copy of Injury Report of
Akhilesh Kumar, 11 Kha/A (Ex. Kha-14),
1 All. Hari Shanker & Anr. Vs. State of U.P.
117
Certified Copy of Injury Report of Hari
Shanker 11 Kha/9 (Ex. Kha-15), Certified
Copy of Injury Report of Shravan Kumar
11 Kha/11 (Ex. Kha-16), Certified Copy of
Injury Report of Meera Devi, 11 Kha/13
(Ex. Kha-17), Certified Copy of Injury
Report of Satish Kumar 11 Kha/15 (Ex.
Kha-18), Certified Copy of Injury Report
of Sheela Devi 11 Kha/17 (Ex. Kha-19),
Certified Copy of Injury Report of Mohani
Devi 11 Kha/19 (Ex. Kha-20) have been
filed.

8. No oral evidence has been
produced by accused persons.

9. Statement of accused persons Hari
Shanker, Raj Kumar, Bhikhari Neta and
Radhey Shyam was recorded under
Section 313 Cr.P.C., wherein they have
denied
the
prosecution
version
and
evidence. Accused Hari Shanker has
mentioned that when he was making
construction in place of wooden shop to
cemented shop and he and his family
members were busy in its cleaning, Ram
Kishor and Vinod etc. demolished his shop
and beaten them brutally for which cross
case
against
prosecution
persons
is
pending. Accused persons Raj Kumar and
Radhey Shyam adopted the statement of
accused Hari Shanker. Accused Bhikhari
Neta has mentioned that his enmity is
continuing with the family of complainant,
he resides in another village. His eye-sight
is weak. His age is 70 years and he has
made accused in party bandi only.

10. Learned Sessions Judge after
consideration of the facts and evidence of
both the parties held guilty and convicted
accused persons-Hari Shanker and Radhey
Shyam under Sections 148, 307 /149 and
323/149 I.P.C. Learned court below
acquitted to accused Raj Kumar from the
charges under Sections 148, 307/149 and
323/149 I.P.C. extending benefit of doubt
to him.

11. As during the proceeding of trial,
accused persons Bhagwati Deen and
Bhihari Neta were died, hence, the case
stood abated against them.

12. Against the aforesaid conviction
and sentences accused persons Hari
Shanker and Radhey Shyam preferred the
present appeal.

13. Heard learned counsel for the
appellants and learned A.G.A. for the State
and perused the record.

14.

Learned
counsel
for
the
appellants submitted that accused persons
have falsely been implicated in the present
case. In fact, the persons from complainant
side started quarrelling and fighting when
appellants were converting their wooden
Gumti into cemented shop. Complainant
side was aggressor. Appellants defended
themselves in exercise of their right to
private defence. Witnesses of prosecution
are family members. No independent
witness as named in F.I.R. has been
examined by prosecution. The weapons
have not been recovered. Role of accused
persons has not been shown in F.I.R.
Doctor who had examined the injuries of
prosecution persons and Investigating
Officer were the necessary witnesses, but
they
have
not
been
produced
by
prosecution. Prosecution has failed to
prove the case beyond any shadow of
doubt against accused appellants. Out of 5
persons only the two persons have been
convicted, hence the judgment and order
of court below dated 30.08.1996 is liable
to set aside. Appellants are liable to be
acquitted and appeal is liable to be
118 INDIAN LAW REPORTS ALLAHABAD SERIES
allowed. In support of his argument,
learned counsel for the appellants has
referred case laws of Sahdev Prasad
Shah Vs. State of Bihar 1999 Supreme
(Patana) 615 and Ganesh Ram @
Ganesh Chamar Vs. State of Bihar 1989
Law Suit (Pat) 62 (D.B.)

15. Per contra, learned A.G.A. has
submitted
that
F.I.R.
is
prompt.
Prosecution witnesses are injured eye
witnesses and are believable. There is no
contradiction
in
their
evidence
on
substantial points. If such witnesses are
genuine and believable, then in that case it
does not affect the prosecution case only
on the ground that they are family
members. If eye witnesses support the
prosecution case, the conviction can be
based on their evidence. There is no
evidence from defence that complainant
side were ever aggressor, rather appellants'
side used deadly weapons to attack
complainant side. The injuries so indicated
by appellants' side are not proved. Learned
counsel for the appellants in sub-ordinate
court has admitted the genuineness of
injury report of complainant side along
with other prosecution papers. Therefore,
the formal proof/evidence of concerning
witnesses were dispensed with by the
Court. In the light of admissible evidence
of eye-witnesses if the recovery of
weapons
has
not
been
done
by
Investigating Officer then in that case
prosecution case does not suffer adversely.
The F.I.R. is not an encyclopedia.
Prosecution has proved his case beyond
any doubt against appellants. Appellants
have rightly been convicted and sentenced
by the court, therefore, appeal is liable to
be rejected.

16. As according to the F.I.R.,
occurrence had taken place on 29.11.1986
at about 8:00 a.m. and its F.I.R. was
lodged on the same date at about 9:30 a.m.
The distance of police station from the
place of occurrence has been shown 5
Kms. Therefore, in absence of any
evidence, it cannot be said that F.I.R. has
been lodged with any inordinate delay.

17. Witness PW-1 is not eye witness
but, he has carried injured persons to
police station, Jahanabad and hospital for
their medical examination. He has proved
the Tahrir of F.I.R. also. The witness has
been cross examined by learned counsel
for the defence properly, but nowhere any
such facts came into light that he did not
carry the injured persons to police station
and hospital.

18. Witnesses PW-2 and PW-3 have
been produced by prosecution as eyewitnesses. Witness PW-2 as eye witness,
who is injured in occurrence also has
stated at Page-2 of his statement of
evidence that at the time of occurrence,
Bhagwan Deen was carrying lathi in his
hand who blown lathi to his son Pramod.
Hari Shanker and Radhey Shyam were
having Tamanche (Country-made pistols)
who fired on him and on Shyam Shree,
Shyam Kali and Manju. Bhikhari Neta and
Raj Kumar were carrying the guns in their
hands who also fired by their firearms.
There were 8-10 more persons on spot.
Further, at page 8 of his statement, he has
mentioned that all the 4 persons attacked
with their firearms.

19. Witness PW-3 Km. Shyam Shree
is also an injured eye witness. She has also
narrated the facts at page-2 of his evidence
that Hari Shanker and Radhey Shyam were
carrying Tamanche, Bhikhari Neta and Raj
Kumar were carrying guns in their hands
and Bhagwan Deen with lathi. He has
1 All. Hari Shanker & Anr. Vs. State of U.P.
119
mentioned that all the 4 persons fired on
them. Subsequently, she has narrated the
role of appellant Hari Shanker that the fire
blown by Hari Shanker, her right eye
became injured by pellets of cartridge and
she lost her right eye. There is no
contradiction on this core point in between
evidence of PW-2 and PW-3.

20. Injury report of PW-2 and PW-3
is on record as Ex. Ka-8 and Ex. Ka-5. The
following injuries have been mentioned in
Ex. Ka-8 (Bachchi Lal, PW-2):-

Firearm wound of entry 1/4 c.m.
x 1/4 c.m. x muscle deep/bone deep with
fresh oozing in (a) back of (Lt) forearm at
middle (b) back of (Lt) forearm just above
wrist (c) (LTO) zygomatic region (d) front
of (Rt) shoulder joint (e) (Rt) thigh lower
part at back (f) (Rt) thigh lower part at
front (g) (Lt) metatarsal region lateral
aspect (h) (Lt) leg lower third lateral
aspect (I) left leg lateral aspect at middle
(j) (Lt) thigh lateral aspect at middle. Adv.
X-ray AP/Lat view for (a) to (j) for
presence/confirmation of pellets and extent
thereof.

21. Injury Report of PW-3, Km.
Shyam Shree (Ex. Ka-5), shows following
injuries:-

(i) Blackening of (Rt) eye with
profuse conjunctival (Rt) haemorrhage
having fresh blood clots with lacerated
wound round shaped 1/8 c.m. x 1/8 c.m. in
lower part of (Rt) side of eye ball. Advised
X-ray AP/Lat. view. Injury u/o.

(ii) Abrasion 1/4 c.m. x 1/4c.m.
in (Rt) side of nose just below eye brow.

(iii) Firearm wounds of entry
with no exit wound having fresh bleeding
with different depths each measuring
1/4c.m. x 1/4c.m. to 1/8c.m. x 1/8c.m.
located at (a) (Lt) forearm. at back 3c.m.
above wrist (b) mid of front of (Rt)
forearm (c) frontal area of skull on left
side of midline. Adv. X-ray AP/Lat view
for confirmation/of presence of pellets and
extent of injuries. Wounds are muscle to
bone deep.

22. So far as the testimony of injured
witness is concerned, it has been held by
Hon'ble Supreme Court in the case of
Surjit Singh @ Gurmit Singh Vs. State
of Punjab 1993 SCC (Cri) 161 that:-

"9.-To be fair to the learned
counsel for the appellant, we may mention
that he ventured to argue that the evidence
regarding the marrying of the crime bullet
shells with the pistol recovered was not
convincing, more so when the 303 pistol, the
alleged crime weapon, was recovered from
Gurmit Singh, co-accused. It is noteworthy
that Gurmit Sing, co-accused, stands
convicted under the Arms Act for being in
possession of that pistol. This aspect of the
case cannot be a substitute to the eyewitness
account or the plea taken by the appellant.
Had the presence of the two witnesses, that
is, Jaswinder kaur PW 5 and Taljit Singh
PW 2 at the scene of the occurrence been
doubted, the recovery of the weapon of
offence and its connection with the empty
shells recovered at the spot would have
assumed some significance. When the two
eyewitnesses are natural witnesses of the
crime, one being the young wife who would
normally be in the company of the husband
at 10.30 p.m. on a summer night and the
other the nephew of the deceased who had
suffered grievous injuries in the occurrence
and was thus a stamped witness, not much
importance is to be attached to this aspect of
the case. The venture is futile."

 (Emphasized)
120 INDIAN LAW REPORTS ALLAHABAD SERIES

23. So far as the evidentiary value of
relative witness is concerned, it has been
held by Hon'ble Supreme Court in the case
of Dharampal and others Vs. State of
U.P. 2008 Cr.L.J. 1016. The relevant part
of the judgment is reproduced as under:-

"12. This takes us to the next
question viz. whether the other lacunae
pointed out by the learned counsel for the
appellants are fatal to the prosecution
case . We agree that the High Court erred
in relying on the evidence of PW4, who
admittedly was declared a hostile witness.
Nevertheless, we fell that in the fact of the
other evidence of PW2 Dannu, PW3 Om
Prakash who were corroborated in all
material respects by PW7 Dr. R.P. Goyal
and by PW9, Dr. U. Kanchan, the
evidence of PW4, even if discharged, is
inconsequential. The evidentiary value of a
dying declaration and the principles
underlying the imprtance of a dying
declaration have already been discussed
herein earlier. Simply because PW2 and
PW3, in their cross-examination, have
been shown to be related to the deceased
does not mean that their testimony has to
be rejected. It is well settled that evidence
of a witness is not to be rejected merely
because he happens to be a relative of the
deceased. In State of Himanchal Pradesh
V. Mast Ram [(2004) 8 SCC 660], this
Court observed as under:-

"............The law on the point is
well settled that the testimony of the
relative witnesses cannot be disbelieved on
the ground of relationship. The only main
requirement is to examine their testimony
with caution. Their testimony was thrown
out at the threshold on the ground of
animosity and relationship. This is not a
requirement of law.............."

In this view of the matter and
this being the well-settled law, it is difficult
for us to discard the evidence of the
witnesses, as discussed hereinabove, only
on the ground that they were related to the
deceased, in the absence of any infirmity
in the said evidence."

 (Emphasized)

24. On the same point, Hon'ble
Supreme Court in case law Rizan and
another Vs. State of Chatisgarh (Supra)
it has been held that:-

"6.- We shall first deal with the
contention regarding interest of the
witnesses
for
furthering
prosecution
version. Relationship is not a factor to
affect credibility of a witness. It is more
often than not that a relation would not
conceal
actual
culprit
and
make
allegations against an innocent person.
Foundation has to be laid if plea of false
implication is made. In such cases, the
court has to adopt a careful approach and
analyse evidence to find out whether it is
cogent and credible."

 (Emphasized)

25. Injury reports of other persons
from prosecution side are also on record,
which are as follows:-

Injury Report of Km. Manju
Devi (Ex. Ka-7)

1. Firearm wound of entry
1/4c.m. x 1/4c.m. x muscle deep in (Lt)
deltoid upper part at middle fresh oozing.
Adv.
X-ray
AP/Lat.
view
for
confirmation/presence of pellet, if any.

2. Injury as above in (Lt) side of
chest 8 c.m. below mid point of (Lt) collar
bone. Adv. X-ray AP/Lat. view for
confirmation/presence of pellet if any.
1 All. Hari Shanker & Anr. Vs. State of U.P.
121

Injury report of Km. Shyam
Kali (Ex. Ka-6)

Firearm wounds of entry 1/4c.m.
x 1/4c.m. three in number each having
fresh oozing muscle deep to bone deep
circular round shaped located in (a)
dorsam of base of (Lt) thumb (b) (Rt) leg
medially at middle (c) (Lt) frontal
prominance. Adv. X-ray AP/Lat view for
confirmation/presence of pellets and extent
of injuries.

Injury report of Vinod Kumar
(Ex. Ka-3)

Multiple firearm wounds of
entry each measuring 1/4cm. X 1/4cm.
App ro. Muscle deep to bone deep
scattered in back of (Lt) lower limb front
of chest front of (Rt) thigh lower part (Rt)
upper limb lower part fresh oozing. Adv.
X-ray AP/Lat view for presence and
confirmation of pellets if any.

Apart from that, injury report of
Pramod Kumar (Ex. Ka-10) shows that
he is suffering from pain in left ear.

26. All the injured witnesses were
examined on 29.11.1986 between 11:30
a.m. to 12.35 p.m. The injury reports of all
the injured persons are also prompt.

27.

Learned
counsel
for
the
appellants has submitted that although the
appellants have admitted the genuineness
of injury reports of injured persons for
prosecution under Section 294 of Cr.P.C.,
but even then it was needed to examine
doctor concerned who had examined the
injured persons. In case, the doctor has not
examined in above circumstances then in
that case the injury report will not be
treated as proved as it does not have the
status of the substantial evidence. In
support of his contention, he has submitted
the case law of Ganesh Ram @ Ganesh
Chamar (Supra) and relied on its para-22
which reads as under:-

"22. Thus the injury report and
the postmortem report are not substantive
evidence. They are only notes which are
prepared by the Doctor at the time of
examination
of
the
injured
or
the
deceased. They become evidence only
when the doctor is examined and crossexamined in court and says that he had
examined the injuries of the injured or the
deceased. His evidence will clearly given
out the nature of injury and also the
weapons used or the manner of assault
and in the case of postmortem it will show
the cause of death of the deceased. These
are relevant things as corroborative piece
of evidence to the oral evidence of the
witnesses. But these evidence (injury
report and post mortem report) can be
used only to contradict or corroborate the
doctor. The injuries of the victim may be
noticed and observed even by a layman,
but this layman cannot give the opinion
about the cause of death, which is given by
the doctor after examination of the dead
body, as an expert. Further if a man
receives
injuries
and
then
dies
immediately thereafter, inference may be
drawn that these injuries may be the cause
of death. But such inference is not
sufficient for purposes of conviction for
murder. A doctor alone can give the
opinion that the victim died as a result of
injuries or that the injuries were such that
the assailant must have known that it was
likely to cause death. Section 32 of the
Evidence Act provides exception to the
general rule about the injury report or the
postmortem report. Similarly Section 294
Cr.P.C. though provides for no formal
proof of certain documents, but it cannot
take the place of the direct evidence of the
doctor. It refers to only that document
122 INDIAN LAW REPORTS ALLAHABAD SERIES
which can be needed in evidence and the
postmortem report or the injury report
cannot be read in evidence unless the doctor
is examined, subject to exceptions provided
under Section 32 of the Evidence Act. The
Court will have to consider the other
evidence on the record if any help, at all, is
available, which may show the injuries, but
that cannot become substitute for the injury
report or the postmortem report in the
absence of the examination of the doctor
barring the case covered by Section 32 of
the Evidence Act. If, at all, doctor is not
easily available or quite easily available as
he has gone abroad or is not likely to come
within reasonable time and that there will be
delay in the disposal of the case causing
harassment to the accused, then the
postmortem report may be brought on the
record not by a clerk but it should be
brought through some person having
technical knowledge of medical science and
jurisprudence or through some doctor who
may be able to answer the questions put by
the prosecution as well as the defence in
respect of the writings of the doctor of
postmortem or injury report. But this is all
subject to the Evidence Act or the code of
Civil Procedure."

28. In reply, learned A.G.A. has
submitted that if the accused persons have
admitted
and
did
not
dispute
the
genuineness
of
prosecution
paper
including injury report of injured persons
from prosecution side then in that case it is
not
needed
call
concerning
formal
witnesses for their evidence.

29. In this regard, the provisions of
Section 294 of Cr.P.C. are reproduced
hereinunder:-

"294. No formal proof of
certain
documents.--(1)
Where
any
document is filed before any Court by the
prosecution or the accused, the particulars
of every such document shall be included
in a list and the prosecution or the
accused, as the case may be, or the
pleader for the prosecution or the accused,
if any, shall be called upon to admit or
deny the genuineness of each such
document.

(2) The list of documents shall be
in such form as may be prescribed by the
State Government.

(3) Where the genuineness of
any document is not disputed, such
document may be read in evidence in any
inquiry, trial or other proceeding under
this Code without proof of the signature of
the person to whom it purports to be
signed.

Provided that the Court may, in
its discretion, require such signature to be
proved."

 (Emphasized)

30. Accordingly under sub-clause (3)
of Section 294 Cr.P.C. if the genuineness
of any documentary evidence is not
disputed by either side such document may
be read in any enquiry trial or other
proceedings without formal proof of
signature of witness concerned.

31. On the above point of argument,
it has been held by Hon'ble Apex Court in
the case of Akhtar and others Vs. State
of Uttaranchal SCC (Cri) 1590 of 2007
that:-

"
9.
Another
post
mortem
examination report, genuineness of which
has also been admitted by the defence,
discloses that autopsy was conducted on
the dead body of Asgar on 14.05.1987 at
about 10.00 AM by Dr. A.K. Lumba. In the
1 All. Hari Shanker & Anr. Vs. State of U.P.
123
opinion of the Medical Officer, both Shakil
and Asgar died on account of shock and
haemorrhage resulting due to ante mortem
injuries.

10. The medical report with
respect to the injuries caused to two
eyewitnesses, namely Jamil Ahmad and
Mobin, genuineness of which has also
been admitted by the defence counsel,
discloses that on Page 7 of 14 13.05.1987
at about 12.15 p.m., injuries were found
on the body of Jamil Ahmad (PW-2) by the
Medical Officer who examined the injured
at L.D. Bhatt Civil Hospital, Kashipur. In
the opinion of the Medical Officer the
injuries were fresh and simple in nature,
caused by sharp edged weapon. The same
Medical Officer also examined PW-3,
Mobin and opined that four injuries were
caused by some hard blunt object and two
injuries were caused by a fire arm and all
the injuries were fresh in duration.

11. Admittedly, there is no
dispute as far as the genuineness of the
injury reports, post mortem reports and
also the genuineness of the Ballistic
Expert's report is concerned. As defence
has already admitted the same no useful
purpose would be served to discuss those
reports again."

 (Emphasized)

32. On the same point, Full Bench of
this Court in case of Siddiq and Ors. Vs.
State 1981 AWC (80) has given the
finding that:-

"9. An injury report filed by the
prosecution is obviously a document as
defined in Section 29 I.P.C. Before the Cr.
P.C. 1973 came into force an injury report
could not be read in evidence as it was
only a writing of the doctor made at the
time of the examination of the injuries of
the injured person. It contained his
observations
regarding
the
nature,
dimension and location of the injuries and
also his opinion regarding their duration
and the instrument with which they were
caused. The doctor who prepared the
injury report was required to enter the
witness box during the inquiry or trial to
prove the injuries of the injured person.
He could refresh his memory under
Section 159 Evidence Act by referring to
the injury report prepared by him and the
injury report was proved by him under
Section
67
Evidence
Act
and
it
corroborated his deposition in Court
under Section 157 Evidence Act. Under
sub-section (3) of Section 294 Cr. P.C. an
injury report filed by the prosecution
under sub-section 294 Cr. P.C. may be
read as substantive evidence in place of
the deposition of the doctor who prepared
it if its genuineness is not disputed by the
??? accused. If its genuineness is disputed
then the doctor who examined the injured
person must appear in the witness box to
prove his injuries and also to prove the
injury report and in such a case the
statement of the doctor would he the
substantive evidence and the injury report
may be used to corroborate or discredit
his testimony.

10. In Jagdeo Singh v. State
[1979 Cr. L.J. 236.] a Division Bench of
this Court held "it was not permissible to
exhibit the postmortem report under
Section 294 Cr. P.C. and even if it was
done the report could not be used as
substantive piece of evidence until and
unless the doctor concerned was examined
in Court. Documents that Section 294 Cr.
P.C. contemplates reading in evidence
upon admission about genuineness by the
opposite party are only such documents
which when formally proved Speak for
themselves. It does not refer to any
124 INDIAN LAW REPORTS ALLAHABAD SERIES
document, which even if exhibited cannot
be read in evidence as substantive
evidence". With great respect, we are
unable to agree with the view taken by this
Court in the above-mentioned case. As
mentioned earlier, there is no restriction
placed on documents in sub-section (1) of
Section 294 Cr. P.C. and it applies to all
documents filed by the prosecution or the
accused. If the genuineness of any
document filed by the prosecution or the
accused under sub-section (1) of Section
294 Cr. P.C. is not disputed by the
opposite party sub-section (3) of Section
294 Cr. P.C. is applicable and it may be
read as substantive evidence. It is true that
prior to the coming into force of the Cr.
P.C. 1973 the post-mortem report after it
was proved was not substantive evidence
but only corroborated the statement of the
doctor made in Court and even now if the
genuineness of the post-mortem report is
disputed by the accused, the doctor must
be examined to prove the injuries found on
the body of the deceased and also the postmortem report and the post-mortem report
may only be used to corroborate or
discredit his testimony which is the
substantive
evidence.
This,
however,
cannot lead to the conclusion that the
post-mortem report cannot be read as
substantive evidence under sub-section (3)
of Section 294 Cr. P.C. if its genuineness
is not disputed by the accused. As already
mentioned, the very object of enacting
Section 294 Cr. P.C. would be defeated if
the signature and the correctness of the
contents of the post-mortem report are still
required to be proved by the doctor
concerned even if its genuineness is not
disputed by the accused. Section 294 Cr.
P.C. is clear and unambiguous. It is only
when the genuineness of the post-mortem
report filed by the prosecution is not
disputed by the accused that sub-section
(3) of Section 294 Cr. P.C. is applicable
and the post-mortem report may be read
as substantive evidence and the signature
and the correctness of its contents need
not be proved by the doctor concerned. We
are, therefore, clearly of the opinion that if
the genuineness of the post-mortem report
filed by the prosecution under sub-section
(1) of Section 294 Cr. P.C. is not disputed
by the accused, it may be read as
substantive evidence under sub-section (3)
of Section 294 Cr. P.C.

11. In Ganpat Raoji Suryavanshi
v. State of Maharashtra [1980 Cr. L.J.
853.] it was also held that the post-mortem
report even if admitted to be genuine by
the accused cannot be read as substantive
evidence under Section 294 Cr. P.C. For
the reasons already given we are, with
great respect, unable to agree with the
view taken in that case."

 (Emphasized)

33. A Division Bench of Patana High
Court has given the same verdict in case
law of Madan Shah Vs. State of Bihar
1997 S.C.C. Online Patana 543.

"13. In this regard it would be
useful to notice that at the time when the
Public Prosecutor filed the post-mortem
report with a petition to mark the same as
Exhibit, Sri Ravindra Prasad Srivastawa,
the
defence
counsel,
admitted
the
genuineness of the document. Therefore,
having regard to the provisions of Section
294 of the Code of Criminal Procedure,
the post mortem report was marked at Ext.
6 by the court below. As per sub-section
(3) of Section 294 of the Code of Criminal
Procedure where the genuineness of such
document is not disputed, it may be read in
evidence in any inquiry, trial or other
proceedings under the Code. That apart
1 All. Hari Shanker & Anr. Vs. State of U.P.
125
having regard to the law laid down by this
Court in the case of Dasrath Mandal v.
The State of Bihar, 1993 (1) P.L.J.R. 737,
if the prosecution or the accused does not
dispute the genuineness of such document,
filed under Sub-Section (1) of Section 294
of the Code, it amounts to an admission
that the entire document is true and
correct. Reference in this regard can also
be made to a Full Bench decision of
Allahabad High Court in the case of
Saddiq v. State (1981 Cri. L.J. 379).

14. It has to bear in mind that
Section 294 of the Code has been
introduced by the Legislatures with a view
to avoid unnecessary delay in disposal of
the criminal cases. An accused has every
right to doubt the genuineness of such
document at the time when it is filed.
Because undisputedly unless such a
document is admitted by the parties no
value can be attached with regard to its
genuineness. Reference in this regard can
also be made to a Full Bench decision of
Bombay High Court in the case of Shaikh
Farid Hussain Sab v. The State of
Maharashtra
(1983
Cri.
L.J.
487).
Therefore, the facts of this case being quite
different, appellants can not get any
benefit of the ratio laid down in the case
as reported in 1994 (1) P.L.J.R. 488
(supra). Because in the present case
genuineness of the document was already
admitted by the defence at the time when it
was brought on the record."

 (Emphasized)

34. A similar view has been taken by
another Division Bench of Patana High
Court in case law of Shanker Shah and
others Vs. State of Bihar 2007 Cr.L.J.
355.

" 26. From a plain reading of S.
294 of the Code of Criminal Procedure, it
is evident that when particulars of a
document is included in a list and when
accused is called upon to admit or deny
the genuineness of such document and in
case it is not disputed same can be read in
evidence in trial without proof of the
signature of the person to whom it
purports to be signed. However, the Court
may in its discretion, require such
signature to be proved.

27. Here in the present case, the
signature of the doctor, who conducted the
postmortem examination, had been proved
by the compounder P.W. 7 Ram Chandra
Tiwari and he had stated in his evidence
that the said post-mortem report was
prepared in his presence and he identified
the signature of its author. The said postmortem report has been filed by the
prosecution with the list of documents and
the endorsement made by the learned
Judge show that the appellants admitted
that without objection. The endorsement of
the learned Judge in the list of documents
clearly
goes
to
establish
that
the
genuineness of the post-mortem report was
not disputed and, as such, same was fit to
be read in evidence in trial in view of the
clear language of S. 294 of the Code of
Criminal Procedure."

 (Emphasized)

35. Law has been framed for
providing justice to victims. It cannot be
placed as a tool in the hands of legal
experts. It will not be proper to apply the
principle in every case that doctor must be
called for evidence even in the cases,
where accused persons have admitted and
not disputed the genuineness of injury
report.