& ANR. Vs. State of U.P.  INSC 1489 (25 August 2009)
IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL
NO. 184 OF 2005 Ramesh & Anr. .... Appellants Versus State of U.P. ....
Respondent With CRIMINAL APPEAL NO. 364 OF 2005 Mani Ram .... Appellant Versus
State of U.P. .... Respondent With CRIMINAL APPEAL NO. 548 OF 2005 Ram Kumar
.... Appellant Versus State of U.P. .... Respondent
This judgment will dispose of Criminal Appeal No. 184 of 2005,
Criminal Appeal No. 364 of 2005 and Criminal Appeal No. 548 of 2005.
mentioned Appeal has been filed by Ramesh, original accused No. 2 (A-2) and Ram
Nath, original accused No. 5 (A-5), while the second 2 mentioned Appeal has
been filed by Mani Ram, original accused No. 3 (A- 3). The last mentioned
Appeal has been filed by Ram Kumar, original accused No. 1 (A-1). All of them
were convicted for the offences under Section 302 read with Section 149, 147
and 148 of the Indian Penal Code (hereinafter referred to as "IPC"
for short) by the IIIrd Additional Sessions Judge, Unnao. They were tried
alongwith two other accused persons, namely, Swami Nath @ Swami Dayal, original
accused No. 4 (A-4) and Ram Naresh, original accused No. 6 (A-6). Even these
two accused persons A-4 and A-6 were also convicted alongwith the appellants
herein, however, it is reported that Swami Nath @ Swami Dayal (A-4) has not
filed any appeal, while Ram Naresh (A-6) is already dead. That leaves us with
only the four accused persons.
All the six accused persons originally faced a charge under
Section 302 IPC. Appellants Ram Kumar (A-1), Mani Ram (A-3) and Swami Dayal @
Swami Nath (A-4) were tried substantively for the offence under Section 302 IPC
on the allegation that they had committed murder of one Raj Kumar (deceased) on
24.10.1978 at about 5 p.m. near a well located to the south-east of the house
of Pancham in Village Karia Khera, Police Station Kotwali, District Unnao. They
were also alternatively charged with other accused for the offence under
Section 302 read with Section 149 IPC. Some accused persons were also tried
under Section 148 IPC and 3 two of them, namely, A-5 and A-6 were tried for the
offence under Section 147 IPC.
The deceased Raj Kumar, who was about 24 years old, was the real
brother of Prithvi Raj (PW-1), the complainant. They had two other brothers and
five sisters. One of the sister is Daya Wati (PW-5), aged about 17 years at the
time of the incident. Ram Kumar (A-1) and Ram Nath (A-5) are the real brothers,
while Ramesh (A-2) is the son of their cousin. Excepting Mani Ram (A-3), all
the accused persons were from a single family. There was some enmity between
the family of the accused and the family of the deceased. There were number of
murders. Ram Raj, who was one of the brothers of Prithvi Raj and Raj Kumar
(deceased) was murdered on 12.6.1977. In that murder case, Prithvi Raj (PW-1)
had named 7 assailants, out of whom one was Ram Naresh (A-6). In that case,
deceased Raj Kumar was a witness. In the murder case of Ram Raj, the
prosecution evidence was to begin from 6.11.1978, i.e., about 12 days after the
incident, which took place on 24.10.1978. In short, there is a strong motive of
enmity in between the accused party and the complainant party.
It so happened that on the fateful day, i.e., 24.10.1978, Raj
Kumar (deceased) went to his tubewell, which is at about 100-125 paces from his
house and after watering the field, he came back home at about 4.30 p.m., 4 as
there was no electric current available. He again started for his tubewell and
his sister Daya Wati (PW-5) and his mother and wife of Prithvi Raj, i.e., his
sister-in-law also followed him. When Prithvi Raj came out of his house,
Prahlad (PW-4) met him. Prahlad had come to the village to purchase the seeds.
Two other persons also met him there and they also started towards the
tubewell. The moment, they reached near the Neem tree situated at a distance of
15 paces from the house of the deceased, all the accused accosted him,
surrounded him and dragged him by pulling near the well upto a distance of
10-15 paces. Ram Naresh (A-6) then exhorted that Raj Kumar (deceased) should be
murdered in the same manner in which his brother Ram Raj was murdered, so that
Raj Kumar may not appear as a witness. Thereupon, Mani Ram (A-3) fired a shot
from his country made pistol, which was followed by a second shot of fire from
the country made pistol of Swami Nath (A-4). Ramesh (A-2) put a cartridge into
a country made pistol and gave it to Ram Kumar (A-1), who also fired a shot at
Raj Kumar, due to which Raj Kumar died on the spot.
accused persons then ran away. Because of the injuries, blood started coming
out and the clothes of Raj Kumar were soaked. They included, in all, 7
Exhibits. Within about 15 minutes, at about 5.15 p.m., Prithvi Raj (PW-1) came
back on his cycle from Village Dewara Kala, where he had gone for doing his
duty as Panchayat Sewak. He found the dead body of Raj Kumar. He talked to his
wife and mother and his sister 5 Daya Wati (PW-5). Other witnesses, namely,
Prahlad (PW-4) and Rajendra Singh and Surendra (both not examined by the
prosecution) were also present there. After knowing about the incident from the
eye- witnesses, Prithvi Raj (PW-1) himself wrote a First Information Report
(FIR) Exhibit Ka-1 and went to Police Station Kotwali, situated at a distance
of about 10 km. from the place of the occurrence, where he lodged it at 6.30
p.m. On the basis of this written report, check report Exhibit Ka-3 was
prepared and the further investigation started. In the FIR, all the 6 accused
persons were named and the whole incident was also narrated. The matter was
investigated by D.P. Tiwari, S.I. (PW-6) and after the usual investigation and
recording the statements of the witnesses, as also after holding the Inquest
Panchanama and Spot Observation Panchanama, the body was sent for post-mortem.
After the completion of the investigation, the chargesheet came to be filed.
Dr. S.M. Tripathi (PW- 2), who had performed the autopsy, found five injuries
on the body of Raj Kumar (deceased), three being the entry wounds and two being
the exit wounds. He also confirmed that all the three injuries were sufficient,
in ordinary course of nature, to cause death.
Accused persons abjured guilt. Two eye-witnesses, namely, Prahlad
(PW-4) and Daya Wati (PW-5) were examined by the prosecution.
Raj (PW-1) spoke about the FIR, while Dr. S.M. Tripathi (PW-2) spoke about the
medical aspect. The only other relevant witness is D.P. Tiwari, PW-6, who was
the Investigating Officer. The defence did not prevail and all the six accused
persons came to be convicted. The accused persons filed appeal before the High
Court, however, their appeals failed and that is how the four accused out of
the original six accused persons are before us, challenging their conviction.
Before the High Court, the criticism levelled was that the
prosecution stood on the basis of the interested witnesses like Prahlad (PW-4)
and Daya Wati (PW-5). The defence severally criticized the non-examination of
the other two witnesses, namely, Rajendra Singh and Surendra, who were
admittedly present and also the other two ladies, namely, Nanhakki and Ram
Piyari, who were claimed to be present in the FIR. It was further urged before
the High Court that the story of the FIR having been recorded at 6.30 p.m. was
a myth and in fact, the FIR was ante-dated. All these arguments were repelled
by the High Court. The High Court came to the conclusion that the evidence of
Prahlad (PW-4) and Daya Wati (PW-5) were absolutely trustworthy and stood the
acid test of cross-examination.
Court further held that there was enough support in corroborating evidence,
inasmuch as in the FIR itself, names of all the accused persons alongwith the
part played by each of them was reflected. It was also held by the High Court
that there was no possibility of ante-dating the FIR. The factum of this murder
was mentioned in the other FIR, wherein it was complained that the complainants
in this case have caused the murder of 7 one of the persons of the accused
party and since that FIR was already recorded by 7.45 p.m., there was no
question of ante-dating the present FIR. The High Court also held that the
medical evidence was enough to prove the guilt. On this basis, the conviction
came to be confirmed.
Before us, Shri Jaspal Singh, Learned Senior Counsel, appearing on
behalf of the appellants, who led the arguments and Shri P.N. Puri, Learned
Counsel, who supported the arguments of Shri Jaspal Singh, took us through the
whole evidence. Ordinarily, we would have refused to go into the evidence,
however, in his inevitable style, Shri Jaspal Singh persuaded us to see the
evidence of the two eye-witnesses. Seeing the evidence, we are convinced that
the eye-witnesses are truthful and were rightly believed by the High Court.
Shri Jaspal Singh criticized the evidence of these two witnesses, suggesting
that the enmity between the parties should have been held on the backdrop
before accepting the evidence of these two witnesses. He is quite right, as the
law on the subject is that evidence of the interested witness should be
appreciated, keeping that enmity in mind. We find that both the Courts have, in
a most balanced manner, appreciated the evidence of these two witnesses.
see the evidence, it is seen that both the witnesses have given the graphical
description of the whole incident.
It was tried to be suggested by Shri Jaspal Singh that Prahlad
(PW- 4) had no business to be in the village and his evidence is almost in the
nature of a chance witness. The Learned Senior Counsel wondered that if this
witness had come to the village for purchasing the seeds, then he had no
business to go to the house of Raj Kumar (deceased) and further to accompany
him. It was also suggested by the Learned Senior Counsel that ultimately he had
never purchased the seeds, which was the object of his visit to the place. The
Learned Senior Counsel further urged that his version on the dragging of Raj
Kumar by the accused persons does not really tally with the version given by
Daya Wati (PW-5). We have considered all these questions. Merely because
Prahlad (PW-4) was not from the same village, it cannot be said that he had no
business in the village. It has come in the evidence clearly that the distance
between the village of Prahlad (PW-4) and the village where the incident took
place is hardly about 1.5 km. Therefore, his coming to the village for
purchasing the seeds cannot be viewed with a suspicion. It is also not
necessary that Prahlad (PW-4) should have straightaway gone only to the shop of
the seeds and purchased the seeds. After all, Prahlad (PW-4) knew the deceased
Raj Kumar and in fact, Prahlad (PW-4) was cross-examined in that direction. If
Prahlad (PW-4) already knew deceased Raj Kumar and if he went just to visit
him, we do not think, this by itself, would be reason to disbelieve his
testimony. In villages, the people do normally go to each 9 other's house.
Again the criticism that Prahlad (PW-4) had no business to go and accompany Raj
Kumar to his field, is also of no consequence, as Prahlad (PW-4) might have
walked alongwith Raj Kumar hardly for 20-25 paces. In fact, the distance
between the house of Raj Kumar and his tubewell is hardly about 100-125 paces,
which has come in the evidence.
even if Prahlad (PW-4) walked alongwith deceased, that by itself, does not make
his version suspicious in any manner. We have seen the cross-examination. The
cross-examination is lacklustre and nothing has been brought in the same. The
Learned Senior Counsel tried to compare the evidence of Prahlad (PW-4) with
evidence of Daya Wati (PW- 5) and pointed out that the theory of dragging was
not supported in the evidence of Daya Wati (PW-5). We have seen the original
version (in Hindi), which convinces us that even Daya Wati (PW-5) has said that
the deceased was actually pulled and pushed to the place, where he was actually
fired upon. Even otherwise, ordinarily the deceased would not have gone
alnogwith his enemy just by walking and his being dragged or being pulled would
be only a natural thing, which the witnesses supported.
one mistake on the question of Ramesh (A-2) loading the pistol with cartridges
and giving it to the other accused. That was obviously a mistake, which has
been explained by the Trial Court as in the cross- examination of Daya Wati
(PW-5), it has very specifically come that it was Ram Kumar (A-1) who fired.
Therefore, the confusion caused was also 10 cleared. Some minor contradictions
were pointed out by Shri Jaspal Singh, the Learned Senior Counsel, which in our
opinion, have been rightly disbelieved by the Trial Court and the High Court.
After all, the contradictions were bound to be there and in fact, those
contradictions have gone to support the truthfulness of the witness.
Lastly, Shri Jaspal Singh, the Learned Senior Counsel for the
appellants pointed out that there were about 12 witnesses. It was admitted by
both the eye-witnesses that there were about 10-12 persons, who were watching
the incident. Learned Senior Counsel severely criticized the prosecution on not
collecting any evidence. Now, it can be understood as to why the other
witnesses were not examined. The enmity between the two parties was known,
there was also murders and counter murders.
such circumstances, if the witnesses do not become available, it is not the
fault of the investigating agency. This is apart from the fact that the
Investigating Officer was not asked about the aspect of witnesses being
available. We do not, therefore, find fault with the judgment of conviction
recorded by the Sessions Judge and the High Court.
Reliance was placed by Shri Jaspal Singh, Learned Senior Counsel
of Uttar Pradesh reported in 1977 (3) SCC 268, more particularly, on Para 11
24-31. We do not think that the case is relevant, as we are convinced that on
the facts of this case, the defence has no scope to stand.
Shri Puri, Learned Counsel for the appellants also supported the
argument and tried to contend before us that the evidence fell short of proof
beyond the reasonable doubt. We do not think so.
For the reasons given, we are of the firm opinion that the
prosecution proved its case to the hilt and the Trial Court and the High Court
were right in convicting the appellants/accused. In that view, all the appeals
......................................J. (V.S. Sirpurkar)
......................................J. (Deepak Verma)
August 25, 2009.