Om Prakash Vs. State of
U.P.  INSC 2150 (12 December 2008)
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1022 OF 2004 OM
PRAKASH ... APPELLANT Versus
S.B. SINHA, J.
appeal is directed against a judgment and order dated 14.5.2004 passed by the
High Court of Judicature at Allahabad in Criminal Appeal No. 1472 of 1981
whereby and whereunder the appeal preferred by the appellant herein against a
judgment of conviction and sentence dated 30.6.1981 passed by Sri R.K. Mishra,
III Additional Sessions Judge, Shahjahanpur in Sessions Trial No. 418 of 1980
holding that the appellant was guilty for commission of offences under Sections
148, 452 and 302 read with Section 149 of the Indian Penal Code and sentencing
him to undergo rigorous imprisonment for 18 months, 18 months and life
imprisonment respectively, was dismissed.
was prosecuted in respect of commission of offences, the incident whereof took
place on or about 15.8.1979 at about 9.30 p.m. in the house of one Mewa Ram.
Janamashtami festival was being celebrated on that night. Dinesh Kumar and
Girish Kumar, the sons of the informant Mewa Ram, Smt. Ramlali, his wife, son
Ram Rakshapal, the deceased and his wife Smt. Neha were busy in offering puja
to the deity. Allegedly, Dinesh Kumar, Ram Rakshpal, Ram Pal and Girish Kumar,
sons of Mewa Ram were found guilty for commission of an offence under Section
307 wherefor Ram Shanker son of Chhotey Lal (accused No. 1) had lodged a First
Information Report (FIR). All the four sons of the informant preferred an
appeal against the said judgment of conviction and were released on bail.
existed a dispute with regard to a house property between Shri Krishna, father
of Pappu (accused No. 7) on the one hand, and the informant as well as his four
sons on the other, wherefor a proceedings under Section 107 of the Code of
Criminal Procedure had been initiated.
adverting to the details of the prosecution case, we may notice the inter se
relationship amongst the accused. Accused Ram Shanker and Ram Bharose were real
brothers; accused Dharmandera was son of Ram Shanker and others were family
members or relatives of Ram Shanker.
Appellant before us
was not concerned with the aforementioned dispute.
We may furthermore
notice that whereas all the 7 accused had been found 3 guilty of commission of
the offence of murder of Ram Rakshapal (deceased), son of Mewa Ram by the
learned trial judge, the High Court had found the appellant only guilty of
firing of a shot at the deceased, opining that participation of other accused
in the commission of the said offence was not proved beyond doubt. We may
furthermore notice that during pendency of the appeal before the High Court Ram
Bharose son of Chhotey Lal and Ram Shanker, son of Rudra Prasad expired.
First Information Report, as noticed above, was lodged by Mewa Ram (P.W.1) on
16.8.1979, stating:- "This is to bring to your kind notice that
approximately four years ago Rama Shankar s/o Chotte Lal Brahman lodged a
criminal case u/s 306 against my son Dinesh Kumar, Ram Rakshapal, Rampal and
Girish Kumar in which matter the four were convicted. They were released on
bail by the High Court. Ever since Rama Shankar and his son Dharmendra and Ram
Bharose and Om Prakash s/o Ramchandar and Satish s/o Rameshwar and Ram Shankar
s/o Rudraprasad and Pappu alias Suresh s/o Sri Krishna were seeking revenge.
Sri Krishna also involved us in the matter of partition of house under 107 which
took place in the court of Pargandhibari, Tilhar. This further aggravated the
enmity, so that tonight around half past nine when I was sitting on the cot in
front of the door under the roof while my son Dinesh Kumar, Shashi Kumar, my
wife Ramlali and my son Ramrakeshpal and his wife Neha were performing
Janamashtami puja in the 2 kitchens, then Om Prakash, Ram Bharose each carrying
their licensed 4 guns and Dharmendra and Satish carrying small guns (tamancha)
and Pappu alias Suresh and Ramashankar carrying guns in their hands entered my
house from the eastern gate on which doors were not attached. Near the thatched
roof a lantern was alight and in front of Girish Kumar's room a kerosene wicked
box was burning. On hearing the foot steps of above named accused I inquired.
On my query my son Ram Rakshpal came out from kitchen and Om Prakash instantly
fired at my son from his gun. I and my family raised alarm. On hearing the
shouts my nephew Ishwar Chand and Suraj Prasad came to the roof carrying a
battery. They saw under the power of the torch that Rambharose and Dharmendra,
Satish, Ramshankar, Pappu alias Suresh and Ramshankar also fired at my son Ram
Rakshapal from their guns and small guns (tamancha). My son received gun shots
and he fell down there only. My son Dinesh Kumar, Shashi Kumar, my wife
Ramlali, Neha w/o Ram Rakshpal and my nephew Ishwar Chand and Suraj Prasad also
saw these people under the light of torch, Lantern and kerosene box wick and
clearly recognized them.
After the accused ran
away from the eastern side we went and saw and found that Ram Rakshpal had
died. I could not care to report the incident because of the fear of the
accused. Now I came to lodge the report written by my brother. Report be
registered and legal action be taken now. Because of rain the corpse of Ram
Rakshpal was removed from the courtyard to the roof."
exists a controversy as to whether the said report was lodged at 4.45 a.m. or
4.45 p.m. on 16.8.1979. Typed copy of the FIR, however, show that it was lodged
at 4.45 p.m. and not at 4.45 a.m. We may also 5 notice that the Investigating
Officer while lodging the FIR stated that the same had been lodged at 9.30 p.m.
on 16.8.1979. Admittedly, the FIR was sent to the court of Chief Judicial
Magistrate only on 17.8.1979. Neither any inquest report nor any seizure memo
had been proved. The documents relating to post-mortem examination of the dead
body was received by the Autopsy Surgeon at about 10.45 a.m. on 17.8.1979. The
dead body, however, was received at about 2.20 p.m. on that day and post-mortem
was conducted at 2.30 p.m. Interestingly, the death, according to the Doctor,
is said to have taken place 3-4 days prior to the post-mortem examination. In
the said report, it was stated:
built body Eyes closed, Mouth half open, Abdomen scrotum and Penis distended
Blister present at places skin peeling off at places.
Rigor Mortis passed
off from both upper extremities but slightly present in lower
FIR was scribed by one Ganga Sahai. He was brother of Mewa Ram. He was,
however, not ordinarily a resident of village Parawnia where the incident took
place but was a resident of Tilhar.
manner in which the incident had taken place was noticed by the High Court,
which is reads as under:
6 "Dinesh Kumar
and Girish Kumar sons of Mewa Ram, Smt. Ramlali, wife of Mewa Ram, Ram
Rakshapal son of Mewa Ram and Smt. Neha wife of Ram Rakshapal were busy in
worship; Om Prakash and Ram Bharosey armed with their licensed guns;
Dharmendra, Satish and Ram Shanker sons of Shhotey Lal armed with country made
pistols and Pappu alias Suresh and Ram Shanker son of Rudra Prasad armed with
guns entered into the house of the informant through eastern side where there
was no gate. Lantern and Dhibari were glowing. When Mewa Ram, informant
objected to it his son Ram Rakshpal came out of the kitchen. Om Prakash fired
on him and the shot hit him (Ram Rakshapal). Thereafter, other accused also
fired and Ram Rakshapal fell down on the spot. When alarm was raised by Mewa Ram,
his nephews Ishwar Chand and Suraj Pal PW2 with their torches reached the roof
and saw the accused persons inside the house of the informant. After committing
the crime, the accused persons made their escape good. Mewa Ram went near his
son Ram Rakshpal and found his son to be dead. Due to fear, Mewa Ram could not
proceed immediately to the police station, which was at the distance of about
four miles from the village. He ultimately got FIR scribed from one Ram Sahai
resident of the same village and lodged it at police station Jaitipur on
16.8.1979 at 4.45 A.M. against the appellants."
prosecution in support of its case, inter alia, relied upon the evidence of
Mewa Ram (PW-1), Surajpal son of Ganga Singh (PW-2), and Dinesh Kumar, son of
Mewa Ram (PW-4). Mewa Ram (PW-1) in his examination-in-chief reiterated the
averments made in the FIR. We may, however, notice that according to him Om
Prakash and Ram Bharose had licensed guns and all others were having
country-made pistols. Whereas Om Prakash was said to have fired from a distance
of 4-5 paces, other accused allegedly fired from a distance of 2-3 paces only.
PW-1 was supported by the other prosecution witnesses.
We may also notice
that in the post-mortem report, the following ante-mortem injuries were found.
wound of entry 0.5 cm x 0.5 cm x bone deep on right side face 0.5 cm in front
of tragus Rt. ear. No blackening around wound present. Margins inverted.
Direction from the Rt.
side ramus & Rt.
2. Gunshot wound of
entry 0.5 cm x 0.5 cm x muscle deep on Rt. side neck 4 cm below Rt. angle of
Jaw Direction from right back to left. Margins inverted. No blackening or
3. Gunshot wound of
entry 0.5 cm x 0.5 cm x chest cavity deep through and through Rt. side chest 8
cm. Above Rt. nipple at 11'O Clock in position from nipple.
4. Gunshot wound of
exit 1 cm x 2 cm x cavity deep through & through communicating injury No.3
on back of Rt. Shoulder, 9 cm below tip of Rt. shoulder posteriorly. Margins
M.L. Tandon, Autopsy Surgeon who was examined before the learned trial judge as
PW-6 stated that there were three wounds of entry, whose size and direction
were same. He furthermore opined that injuries caused to the deceased was only
possible if shots had been fired from his right side. He furthermore was of the
opinion that the duration of time of death may vary by about 6 hours. We have
noticed hereinbefore that according to the post-mortem report, Blister was
found to be present at places and skin was also peeled off at places. Rigor
Mortis passed off from both upper extremities but slightly present in lower
the date of occurrence, according to the prosecution witnesses, it was raining
and the dead body was kept under the Chappar. The prosecution failed to obtain
an explanation from the Autopsy Surgeon as to how he had opined that death had
taken place 3-4 days prior to his post-mortem examination although he examined
the dead body within 41 hours from the time of occurrence.
is furthermore evident that all the prosecution witnesses stated that all the
accused persons had fired from the respective firearms. According to them at
least 7 shots were fired; 3 shots had hit the person of the deceased.
If that be so, more
than one gun must have been used. Appellant, as noticed hereinbefore, is said
to have been fired a shot from his licensed gun. Its use, 9 however, has not
been established by the prosecution as the report of the ballistic expert is
silent in that regard. The empties which were found at the spot had not been
examined by any ballistic expert. The empties which were recovered from the
dead body were not matched with the gun allegedly used.
We may notice that
two metallic pellets were recovered from the dead body. Empties had not been
shown to the expert; even the attention of the Autopsy Surgeon was not drawn
thereto. Although shots were said to have been fired from a distance of 2-3
paces, no blackening or charring was found to be present. If the shots were
fired from a close range, it was expected that blackening and charring would
have been noticed by the Autopsy Surgeon at the entry point.
Sessions Judge and the High Court, with respect, failed to apply their mind as
regards the time of lodging of the FIR. Hirdey Narain Shukla, the Head
Constable attached with Police Station who was examined as PW-3 before the
learned trial judge stated that the FIR was lodged at 4.45 a.m. and he had
recorded the same immediately. According to him, the special reports were sent by
6.00 a.m. through a constable. However, the Investigating Officer did not say
so. As we have noticed hereinbefore, he, in his evidence, categorically stated
that he had recorded the FIR at 9.30 p.m.
No evidence had been brought on records to show that investigation had started
on 16.8.1979. A site plan was prepared but it does not bear any date.
The prosecution has
not explained as to why the FIR was sent to the court of Chief Judicial
Magistrate on 17.8.1979 and why the dead body was not sent for post-mortem on
High Court, in our opinion, committed a serious error insofar as it proceeded
on the basis that shots fired by the appellant caused the fatal injury. The
High Court did not analyze the evidence on record as to who caused the other
firearm injuries. If the prosecution witnesses, who were said to be the
eye-witnesses, were to be believed, 6 out of 7 accused could not have been
acquitted and particularly those who had direct enmity with Mewa Ram and his
sons. Although Suraj Pal (PW-2) son of Ganga Singh denied the suggestion that
scribe of the FIR who was admittedly a resident of different village (said to
be at a distance of 10 kilometers) from the place of occurrence, the
prosecution had not explained as to why he was not examined. If he was present
in the village it was expected that he also had witnessed the occurrence, as
his son was said to be an eye-witness. It is difficult to believe that in a
case of this nature the investigation did not start immediately. Inquest report,
preparation of seizure memo etc. which were to be carried routinely, and as
such there was no reason as to why they were not brought on record.
examining the original records of the case, we have noticed that some
interpolations have made in the records maintained at the police station. The
High Court, in our opinion, committed a serious error in drawing an inference
that appellant had rightly been held guilty for commission of offence of murder
of Ram Rakshpal as animosity between the parties was proved. It failed to
notice that there is nothing on record to show that the appellant had been
bearing any animosity against the deceased. On the other hand, other accused
were having animosity towards the deceased, Mewa Ram and his family.
Furthermore, the High
Court did not pose unto itself the correct question, namely, the time of
lodging the FIR, i.e., whether it had in fact been lodged at 4.45 a.m. or 4.45
p.m.. If it was lodged at 4.45 p.m., the entire edifice of the prosecution case
would fall to the ground.
in lodging the First Information Report has a great importance in a case of
this nature. Enmity between the parties stands admitted. The prosecution case
proceeded on the basis that immediately after occurrence and after shifting the
dead body under a shed, the informant got the First Information Report scribed
by Ganga Sahai and immediately thereafter proceeded on foot to the Police
Station. If this part of the story is correct, the prosecution's case would not
be subject to much doubt. But if the scribe 12 of the First Information Report
was residing in a separate village which is 10 kms. away from the place of
occurrence, and it was at that place the FIR was scribed where after PW1
arrived at the Police Station, it would impossible for him to reach by 4.30 in
the morning. The prosecution did not examine the scribe of the First
Information Report although his son has been examined as an eye-witness. If he
was residing at the relevant time in the village where the incident had taken place,
it was expected that either he had witnessed the occurrence or had reached the
place of occurrence immediately after the accused fled away. The prosecution,
therefore, should have made attempts to clarify this anomaly.
exists a discrepancy as regards timing of the lodging of the First Information
Report. P.W.3, Head Constable Hriday Narain Shukla, testified that it was
lodged at 4.45 a.m. Records, however, show otherwise. In the FIR, it is shown
to have been lodged at 4.45 p.m. As noticed hereinbefore, there are some
interpolations but according to the Investigating Officer, he recorded the
First Information Report at 9.30 p.m. on 16.8.1979.
if the First Information Report was lodged early in the morning, there was
absolutely no reason as to why the investigation did not start immediately
thereafter. If Head Constable Hriday Narain Shukla is 13 correct that the
copies of the First Information Report had been sent to all concerned including
the court, there was absolutely no reason as to why the same would reach the
court on the next date. We also fail to comprehend as to why the dead body was
sent for post mortem only on 17th instead of 15th itself. The seizure memo does
not contain any date. The original inquest report is not on record.
except the appellant all other accused have been acquitted. The High Court,
therefore, did not rely upon the prosecution case in its entirety. While doing
so, unfortunately, the High Court did not consider these vital aspects of the
matter which were crucial for determination of the issue.
the aforementioned reasons, the impugned judgment of the High Court cannot be
sustained and it is set aside accordingly. The appeal is allowed. The Appellant
who is in custody is directed to be set at liberty unless wanted in connection
with any other case.