Ram Charan & Ors Vs. State of U.P
 INSC 51 (1 March 1968)
01/03/1968 SIKRI, S.M.
CITATION: 1968 AIR 1270 1968 SCR (2) 354
R 1974 SC2165 (48) R 1980 SC 628 (13)
Code of Criminal Procedure (Act 5 of 1898),
s. 164-Statement of witness recorded under section-Evidence given by him in
The statements of eye witnesses to a murder
were recorded under s. 164, Criminal Procedure Code, and a certificate was appended
to each of the statements to the effect, that the deponent was warned that he
was making the statement before a Magistrate and that it might be used against
On the question as to the weight to, be
attached to the evidence given by the witnesses in court,
HELD : It did not follow from the endorsement
that any threat was given to the witnesses or that it necessarily made their
evidence in court suspect or less believable.
[357 G] If a witness, in his evidence in
court sticks to the version given by him in the statement under s. 164, Cr.
P.C. the mere fact that the statement was previously recorded under the section
is not sufficient to discard his .,evidence.
The only inference that can be drawn is that
there, was a time when the police thought the witness may change his evidence.
The Court. %however, ought to. receive the evidence with caution. [358 D]
Observations in Parmanand v. Emperor, A.I.R. 1940 Nag. 340, 344 and In re :
Gopisetti Chinna Venkatasubbialh., I.L.R.
 A.P. 633, 639. approved.
Observations contra in Emperor v. Manu Chik,
A.I.R. 1938 Patna 290, 295, disapproved.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 175 of 1967.
Appeal by special leave from the judgment and
order dated May 17, 1967 of the Allahabad High Court, Lucknow Bench in Criminal
Appeal No. 72 of 1967 and Capital Sentence Reference No. 9 of 1967.
S. P. Sinha. and M. I. Khowaja, for the
G. N. Dikshit and O. P. Rana,, for the
The Judgment of the Court was delivered by
Sikri, J.-This appeal by special leave by Ram Charan, Duilarey and Ram Bux is
directed against the judgment of the Allahabad High Court, Lucknow Bench,
confirming the convictions under s. 302, read with s. 34, I.P.C. Ram Charan and
Dularey were sentenced to death while Ram Bux was sentenced to imprisonment for
355 The relevant facts in brief are as
follows : On December 24, 1965, at about 8 a.m. four persons started for
Lucknow on two cycles; Shanker Singh and Radhey Shyam were on one cycle and
Surat Singh and Bachchu Lal on another. Radhey Shyam had some business in
Lucknow, including consulting Sri Pal Singh, Advocate, P.W. 20, regarding the
preparation of a reply to a notice received by him. After the work was finished
the four left Lucknow. It appears that Radhey Shyam was sitting on the carrier
of the cycle driven by Shankar Singh, and Bachchu Lal was sitting on the
carrier of the cycle driven by Surat Singh. Radhey Shyam carried a leather bag
in which he had kept money which he had received as the sale proceeds of jau
sold by him in Lucknow. For some reasons which need not be detailed, Shankar
Singh and Radhey Shyam went ahead of Surat Singh and Bachchu Lal, and the
distance between them when they came near about the scene of occurrence was,
according to Surat Singh, between 1-1/2 and 2 furlongs. When Shankar Singh and
Radhey Shyam reached near the drain of Rastogi, they met Ram Charan, accused.
Radhey Shyam got down from the cycle and started walking with Ram Charan, while
Shankar Singh followed a little behind. Then the attack on Radhey Shyam took
place and is described thus by Shankar Singh :
"When we reached the grove of Durga
Maharaj' then Ram Bux and Dularey accused were sitting at the well. Then Ram
Charan by extending his hands (Kantiya Kar) caught hold of Radhey Shyam and
threw him down on his face and after drawing his hands towards his back sat
down catching him. Dularey and Ram Bux came up running. Dularey had a Banka and
Ram Bux had a lathi. Ram Charan told Dularey, 'Bring the Banka, why are you
delaying it.' Thereupon I cried out. Then Dularey gave 5-6-7 Banka blows to
Radhev Shyam on his neck. As I was crying so Ram Charan saia 'Beat Thakurwa. He
will go to the village and tell that such and such persons had hacked Radhey
Shyam.' At this Ram Bux gave 5-6 Lathi blows to me. By that time Surat Singh
and Bachoo Mahraj also came there and Rupan also came." Surat Singh
corroborates this statement. He says that he saw all this from a distance of
1-'i furlongs. Bachchu Lal, P.W. 7, also corroborates this version. He says
that on seeing the attack he and Surat Singh ran towards the scene of
occurrence. He further adds that when they were at a distance of about 30-35
paces, the accused ran away.
The First Information Report was lodged at
the police station four miles from the scene of the occurrence at 17.30 hours
by Shanker Singh.
356 The learned counsel for the appellants
says that the First Information Report was written much later than the time mentioned
above. He relies first on the fact that the first page of the First Information
Report was written very closely and the second page written not so closely. He
suggests that the draft was prepared sometime later and then it was copied into
the Register in which first information reports are written; the writer having
left only two pages for the report to be transcribed wanted to be quite certain
that the report would finish in two pages. This suggestion is, however, denied
by Liaqat Hussain, P.W. 6, who was posted as Head Moharrir at the police station
Kakori in 1965. He says that he wrote on the first page of the report closely
because he wanted that the whole matter should be completed on that page and
that there was no other reason;
after finishing the first page when he
started writing on the second page then he did not write closely as the report
had come to an end. He denied the suggestion that two pages were left for
writing this report. This explanation seems to be true. The special report of
this case was sent, according to this witness, on December 24, 1965, at 7.55
p.m. through Abdul Rashid, Constable, who was called as Court Witness. He says
that he delivered the special report at the place of S.S.P. I at 9.10 a.m. on
December 25, 1965.
The special report was sent to S.S.P. D.M.,
Additional S.P.C.O., S.D.M., and D.C.R.R.S. on Invoice Book at No. 54 which was
exhibited in Court. The learned counsel criticizes his evidence on the ground
that there is no reason why he should have slept on the way. The reason given
by Abdul Rashid for breaking his journey on the way is that the ekka drivers
and riksha drivers were charging too much. In our view, there is no force in
this contention of the learned counsel for the appellants.
The second ground of attack against the First
Information Report is that the report itself discloses that it could not have
been dictated by Shanker Singh. He says that Shanker Singh was literate and yet
the First Information Report bears his thumb mark. He further says that it
mentions the names of the fathers of Radhey Shyam, Ram Charan, Mata Pershad,
Dayal, Lallu and Ram Bux, but in cross-examination Shanker Singh admitted that
he did not know the names of Ram Charan's father and Rain Dayal's father, and
also he did not know the name of Ram Bux's father. He, however, further added
in cross-examination that at the time he gave the First Information Report, the
names of the fathers of Ram Charan and Ram Dayal were then in his memory.
Another fact relied on by the learned counsel is that the First Information
Report contains the word "sazish" while in cross-examination Shanker
Singh admitted that he did not know the meaning, of this word. He urges that
looking at all these circumstances it is clear that the First Information
Report was either 357 written at the scene of occurrence after the
Investigating Officer had gone there or that a draft was first written on a
piece of paper some people supplying the names of the fathers of the various
persons and suggesting words.
We are, however, unable to accede to this
contention. It may well be that the chowkidar who accompanied Shanker Singh
supplied the name of the father of a particular person and the Head Moharrir
may have substituted a word or two of his own, without changing the meaning.
The Investigating Officer went straightaway to the scene of the occurrence and
started investigation. None of these facts, in our opinion, cast doubt on the
prosecution story. It may be that Shanker Singh is able to sign but he put his
thumb impression not only on the First Information Report but on his statement
under s. 164, Cr. P.C., and this statement before the Committing Magistrate. It
may be that It was felt safer to have his thumb impression which he could not
effectively deny later. But the fact that the special report 'was sent on December
24, 1965, in the evening, dispels any doubt about the fact that the First
Information Report was lodged at 5.30 p.m. on December 24, 1965.
Dealing with the eye-witnesses, the learned
counsel drew our attention to the endorsement which was made by the Magistrate
who took down the statements under s. 164, Cr.
P.C. Below he statements is appended a
certificate in the following form "Certified that the statement has been
made voluntarily. The deponent was warned that he is making the statement
before the 1st class Magistrate and can be used against him.
Recorded in my presence. There is no police
here. The witness did not go out until all the witnesses had given the
statement." This certificate appears below the statements of Shanker
Singh, Surat Singh and Bachchu Lal. The learned counsel rightly suggests that
the endorsement is not proper. But we are unable to pay that it follows from
this endorsement that any threat was given to these witnesses or that it
necessarily makes the evidence given by the witnesses in Court suspect or less
The learned counsel further relies on the
following passage rom the judgment of Dhavle J., in Emperor v. Manu Chik(1)
"There is yet another circumstance which calls for remark, and that is the
examination, of Ladhu and Rebi among other witnesses under S. 164, Criminal
P.C. it was pointed out by Prinsep, J., in the well-known case in Queen Empress
v. Jadub Das(2) that a statement of a (1) A.I.R. 1938 Pat 290-295.
(2) 27 Cal. 295.
358 witness obtained under this section
always raises a suspicion that it has not been voluntarily made, and that the
section was not intended to enable the police, to obtain a statement from some
person (in that case it was an incriminating statement) and as it were to put a
seal on that statement by sending in that person to a Magistrate practically
under custody, to be examined before the judicial inquiry or trial, and
therefore compromised in his evidence when judicial proceedings are regularly
taken." These observations were dissented from by the Andhra Pradesh High
Court in In re : Gopisetti Chinna Venkata Subbiah(1) and Subba Rao, C.J.,
preferred the following observations of the, Nagpur High Court in Parmanand v.
Emperor(1) "We are of the opinion that if a statement of a witness is previously
recorded under section 164, Criminal Procedure Code, it leads to an inference
that there was a time when the police thought the witness may change but if the
witness sticks to the statement made by him throughout, the mere fact that his
statement was previously recorded under section 164 will not be sufficient to
discard it. The Court, however, ought to receive it with caution and if there
are other circumstances on record which lend support to the truth of the
evidence of such witness, it can be acted upon." We agree with Subba Rao,
C.J., that the observations of the learned Judges of the Nagpur High Court lay
down the lay correctly.
In the result the appeal fails and is
V.P.S. Appeal dismisses (1) I.L.R. 
(2) A.I.R. 1940 Nag. 340.