Hiralal Pandey and
Ors. Vs. State of U.P.
J U D G M E N T
[CRIMINAL APPEAL No.
65 of 2008]
A. K. PATNAIK, J.
is an appeal by way of special leave under Article 136 of the Constitution of
India against the judgment and order dated 06.02.2007 of the Allahabad High
Court in Criminal Appeal No.178 of 1981.
facts very briefly are that on 22.09.1979 at 8.05 p.m. Balbir Singh, the
complainant, lodged an FIR with Police Chowki Dhata, P.S. Khakhreru in District
Fatehpur. The prosecution story as stated in the FIR was that on 22.09.1979 the
complainant was returning home after purchasing crude oil from Khaga and Raja
Ram Singh (his father) and Kunj Behari Singh were waiting for him at Dhata and he
left the oil at Dhata and the three sat on the Motorcycle No.UTY 3213.
Kunj Behari Singh
drove the motorcycle and when they reached near bamboo clumps ahead of Kanya
Pathshala on Dhata-Hinauta Road at about 6.00 P.M., Hira Pandey, Subhash Pandey
@ Bodhan and Surendra Nath Pandey, the three appellants herein, who were
waiting with single barrel gun, double barrel gun and rifle respectively and
cartridge belts, started firing at them.
As soon as Kunj
Behari was shot, the Motorcycle lost balance and he and his father jumped off
from the bike and while his father ran towards the west into the paddy fields, he
ran towards Harijan Basti. From Dhata end, Sunder Lal Singh, Hari Prasad Singh,
Lakhpat Sonar and Shisuvir Narain were coming and many other persons were
coming from Kabraha side and on their exhortation, the appellants ran away to
hide in the fields.
Raja Ram and Kunj
Behari died at the spot as a result of the firing. He had lodged a case against
two of the appellants, Subhash and Surendra under Sections 323, 325 and 147 of
the Indian Penal Code (for short IPC) and they had asked him to compromise
several times but he had not compromised and to take revenge they had fired
upon them. The complainant has also stated in the FIR that his pant got torn
while running to save his life.
FIR was registered. The investigation was entrusted to Pyare Lal Sharma, S.I.
(for short the IO). The IO reached the place of occurrence at 7.30 A.M. on 23.09.1979
where the complainant was present. He recorded the statement of the complainant
and wrote the Panchnamas of the deceased Raja Ram and the deceased Kunj Behari in
the presence of the witnesses and seized the bodies of the two deceased persons
and sent them for post mortem to the District Hospital through Constable Jamil Ahmad.
He also collected blood-stained earth and sealed them in containers. He recorded
the statements of Raghupat Singh, Sunder Lal Singh, Hari Prasad Singh and a few
other persons of the Harijan Basti. The remaining investigation was completed
by S.O. Ram Mohan Ramand a charge-sheet was filed against the appellants under
Section 302 read with 34, IPC.
the trial, the complainant was examined as PW-1, who fully supported the
prosecution case as alleged in the FIR. Hari Prasad Singh was examined as PW-2
and he also supported the prosecution case as alleged in the FIR. Dr. Anand
Swarup of the District Hospital, who carried out the post mortem, was examined
He described in details
the ante-mortem gun shot injuries in the chest and abdominal cavity and the
thighs of the deceased Raja Ram and opined that the cause of his death was due
to shock and hemorrhage as a result of the injuries sustained by him. PW-3 also
described the ante-mortem gun shot injuries on left side of the chin and below
the left ear and the left side of the neck of the deceased Kunj Behari Singh and
opined that the cause of his death was due to shock and hemorrhage. Ram Prakash,
the constable who received the complaint at Dhata Chowki of P.S. Khakheru, was
examined as PW-4.
The IO was examined
as PW-5 and Jamil Ahmad, the constable, who carried the dead body for the post mortem,
was examined as PW-6. In defence, the appellants examined a resident of the
Harijan Basti of village Dhata, Shiv Balak, as DW-1 who stated that he had
heard some voice coming from the road in the south of his house asking for help
and when he walked ahead in the direction of the voice he saw 6-7 miscreants
who fired twice, but he could not recognise the miscreants and the appellants
were not amongst the miscreants.
The trial court,
however, relied upon the evidence of PW-1 and PW-2 and convicted the appellants
under Section 302 read with Section 34, IPC and after hearing the parties on the
question of sentence, sentenced them for life imprisonment. The appellants carried
an appeal to the High Court, but the High Court has affirmed the conviction and
the sentence and has dismissed the appeal.
Vijay Hansaria, learned Senior Counsel appearing for the appellants, submitted
that the trial court and the High Court should not have relied on the evidence
of PW-1 as admittedly he had previous enmity with the appellants. He submitted
that if PW-1 was the prime target of the appellants, he would have received
some injury as according to PW-1 all the appellants were armed with fire arms
and cartridges, but as a matter off act PW-1 has not received a single injury
and this would go to show thatPW-1 has falsely implicated the appellants.
He further submitted that
according to the evidence of PW-1, as soon as the motorcycle lost balance he
jumped off from the motorcycle and ran away from the place of occurrence
towards the Harijan Basti and therefore he could not have seen the appellant
firing on the two deceased persons.
Hansaria submitted that the trial court and the High Court should not have relied
on PW-2, who was a mere chance witness and was also a witness cited by PW-1 in
support of his complaint against the appellants under Sections 323, 325 and 147
IPC pending in the Court. He argued thatPW-2 therefore was an interested
witness and his evidence should have been discarded.
He submitted that
PW-2 has made material improvements over his statement made to the police under
Section 161 of the Cr.P.C. He has stated that Hira and Surendra fired at the
deceased Raja Ram in which case Raja Ram would have had injuries from at least
two gun shots, but according to PW-3, the Doctor, who carried out the post
mortem on the dead body of Raja Ram, all the injuries on his dead body were caused
by a single gunshot.
Hansaria next submitted that in the FIR, PW-1 has stated that when the
appellants were firing on the deceased persons from the Dhata end besides Hari
Prasad Singh (PW-2) Sunder Lal Singh, Lakhpat Sonar and Shisuvir Narain were
coming and many other persons were coming from Kabrahaside, but the prosecution
has examined only PW-1 and has not examined the other witnesses. He submitted
that the I.O. (PW-5) has admitted that he had recorded the statement of Sunder
Lal Singh and yet Sunder Lal Singh has been withheld from the witness box and
there is no explanation whatsoever as to why Sunder Lal Singh was not examined.
He submitted that independent
witnesses have therefore not been examined in support of the prosecution case
though these witnesses were named in the FIR. He cited Hem Raj and Others v.
State of Haryana [(2005) 10 SCC 614] in which this Court has held that when the
evidence of alleged eyewitnesses raises serious doubts on the point of their
presence at the time of actual occurrence, the unexplained omission to examine
the relevant witnesses would assume significance.
Hansaria also pointed out the following lapses in the prosecution case:
time of recording of FIR at Dhata Police Chowki is doubtful, since at the time
of writing the report it was made by pencil which was erased and again overwritten
as per the evidence of PW-4 (Constable Ram Prakash).
is no recovery of empty cartridges from the place of occurrence, even though
both the eyewitnesses have stated that several gun shots were fired.
on the bodies of the two deceased persons were not correlated with weapons
allegedly possessed by accused persons.
fire arms allegedly used have not been recovered nor is there any mention of
efforts made to recover the same.
blood stained earth was collected and sealed near the dead body of Kunj Behari;
no serological report has been produced to match the blood with that of the
deceased Kunj Behari.
per PW-4, though Darogaji from Police Station, Khakeru came to the outpost in
the night after the report of the incident has been sent from Chowki, yet investigation
was started only in the morning.
R.K. Das, learned Senior Counsel appearing for the State, submitted that the
presence of PW-1 at the spot of occurrence is supported by three circumstances:
(a) that his motorcycle was found lying at the spot; (b) that his pant was torn
and (c) DW-1 admitted to have seen the motorcycle lying on the western side of
the road. He submitted that PW-1therefore was present at the place of
occurrence and was an eyewitness to the firing. He submitted that PW-2 could not
be treated as a chance witness as the incident took place on the road and only passers-by
on the road would be witnesses to any such incident which took place on the road
and their evidence could not be brushed aside on the ground that they are
chance witnesses. He cited Thangaiya v. State of T.N. [(2005) 9 SCC 650]in
which this Court has held that if a murder is committed in a street, only
passers-by will be the witnesses and their evidence could not be brushed aside
or viewed with suspicion on the ground that they were mere chance witnesses.
Das also cited the decision of this Court in State of U.P. v.Anil Singh (1988 Supp.
(2) SCR 611) for the proposition that the prosecution version could not be
rejected only on the ground that all the witnesses to the occurrence have not
been examined. He submitted that the prosecution story thus cannot be discarded
merely because all the witnesses named in the FIR including Sunder Lal Singh
were not examined before the court.
Das submitted that it is true that the fired cartridges have not been recovered
from the place of occurrence and this may be because the paddy fields had water
and paddy stand up to knee height and it was impossible to search and collect
the fired cartridges, but the fact remains that the deceased have died of fire arm
injuries. He contended that the trial court and the High Court have rightly believed
the two eyewitnesses PW-1 and PW-2 considering the fact that the motive of the appellant
was to take revenge against the complainant and his father for not agreeing to compromise
the complaint case under Sections 323, 325 and 147 of the IPC pending before
may first examine the contention of Mr. Hansaria that the trial court and the High
Court should not have relied on the evidence of PW-1 and PW-2 who were
interested witnesses and that the prosecution should have examined the
independent witnesses cited in the FIR, namely, Sunder Lal Singh, Lakhpat Sonar
and Shisuvir Narain, who as per the FIR shouted at the appellants when they
were firing at the deceased. We have perused the decision of this Court in Hem
Raj and Others v. State of Haryana (supra) cited by
Mr. Hansaria and we
find that in the aforesaid decision this Court has held that non- examination
of independent witnesses by itself may not give rise to adverse inference
against the prosecution, but when the evidence of the alleged eyewitnesses
raises serious doubts on the point of their presence at the time of actual
occurrence, the unexplained omission to examine the independent witnesses would
assume significance. Hence, we will have to first consider whether the evidence
of the two eyewitnesses PW-1 and PW-2 raises serious doubts on the point of their
presence at the time of actual occurrence.
we examine the evidence of PW-1 in this light, we find that he has stated that
he had a motorcycle and a diesel pump set and on the day of the incident he
purchased crude oil from Khaga, which is entered in his card and he came back
to Dhata taking crude oil at 5.30 P.M. in the evening where he met his father
and Kunj Behari and he kept the oil in a shop there and Kunj Behari drove the
motorcycle from Dhata and his father and he sat behind him and when they started
from Dhata for their village on the motorcycle the incident took place at about
5-10 minutes before 6.00 p.m.
He has stated: When
we reached ahead of Kanya Pathshala Dhata near bamboo clumps, these three
accused came out bamboo clumps. At that time accused Subhash was holding a
double barrel gun with cartridge belt on shoulder. Hira Lal Pandey was having single
barrel gun with cartridge belt on shoulder. Surendra had rifle and also cartridge
belt. When these people came on the road and saw us going, then the three accused
exhorted that today let them not escape.
It was combined voice
of the three. On exhortation all the three fired almost same time. First
Subhash fired, I do not know whether it hit any body or not. But Kunj Behari
Singh was scared by firing and Motor Cycle got dis-balanced and came on western
strip of the road. Me and my father jumped from Motorcycle and ran. But Kunj Behari
fell down along with Motorcycle. Accused persons were firing continuously. My
father went ran towards paddy field towards west and I ran towards Harijan
Basti in north.
Hearing the fire, Sunder
Lal Singh and Hari Prasad Singh of village Sonari coming on cycles from Dhata
reached there. Lakpat Sonar also reached there. These people stopped there and
shouted at the accused. I was running and hearing the fire. I was clearly
hearing the sound of fire. Accused persons ran away on exhortation-lalkara of
witnesses. When I jumped from the motorcycle and ran, I could not see whether my
father or Kunj Behari was hurt or not because I was running to save myself.
I ran towards village
through Harijan Basti and Canal Side. I shouted reaching near the village. I
returned back at the spot along with several persons collected there, and found
that Kunj Behari was lying dead by gun shot on the road and my father was lying
dead by gun shot in paddy field, while running my trouser got torned. We people
remained for about an hour at the place of occurrence. From there I came to
Dhata and wrote the report in my hand writing sitting near the shop of Uma
Shankar and gave that in Data Chowki.
the aforesaid narration of the incident by PW-1, it is very clear that he was
present at the time of the occurrence and has seen the appellants with double
barrel gun, single barrel gun and a rifle with cartridges. He has stated that
when the appellants fired, Kunj Behari, who was driving the motorcycle, got
scared by the firing and the motorcycle got dis-balanced and came on the
western strip of the road and he and his father jumped from the motorcycle and ran
but Kunj Behari fell down along with motorcycle. He has also stated that the
appellants were firing continuously and his father ran towards paddy field
towards west and he ran towards Harijan Basti towards north.
He has also said that
after he returned to the spot he found that Kunj Behari was lying dead by gun
shot on the road and his father was lying dead by gun shot in paddy field. Moreover,
PW- 1 has clearly disclosed that hearing the firing, Sunder Lal Singh and Hari
Prasad Singh (PW-2), who were coming on cycles from Dhata, reached there and
Lakhpat Sonar also reached there. He has not said that only Hari Prasad Singh
(PW-2) from Dhata reached there.
If PW- 1 was really
interested in falsely implicating the appellants in the case with the help of PW-2,
he could have also said that he also saw the appellants firing at his father
and at Kunj Behari and that only Hari Prasad Singh (PW-2) was coming on cycle
from Dhata and shouted at the appellants and that Sunder Lal Singh and Lakhpat
Sonar, whom he had named in the FIR, did not reach the spot in time to be able to
witness the incidence. We are, thus, of the view that the evidence of PW-1
could not have been doubted by either the trial court or the High Court.
we examine the evidence of PW-2 Hari Prasad Singh, we find that he has stated: Incident
occurred about an year ago. Sun was about to set at about 6 P.M. in the evening
I along with fellow Sunder Singh were going from Dhata to Sonari on our
separate cycles. Sunder Singh is also resident of Sonari. When I reached near girls
school on Dhata- Sonari road, then from our back, deceased Raja Ram, Kunj
Behari and Balbir P.W.1 crossed us on motorcycle. Kunj Behari was driving the motorcycle,
Raja Ram and then Balbir were sitting behind him.
After crossing the
girls school and when we were 30-40 paces away from Bamboo Kothi, all the three
accused, Surendra, Heera and Subhash, present in court, came on the road from Bamboo
Kothi. Seeing these persons, all the three accused gave a Lalkara that they should
not go, and after saying this, three accused fired. At that time, accused
Subhash had a double barrel gun, Surendra had a rifle and Hira Pandey had a
single barrel gun. Due to fire, motor cycle got disbalanced. I did not see that
the fire hit any body riding the motorcycle or its driver but I saw motorcycle getting
disbalanced and going towards left strip of the road. Balbir P.W.1 jumped from
that disbalanced motorcycle and ran towards north in the side we were going. Raja
Ram also got down from motorcycle and ran towards paddy fields in west. But Kunj
Behari fell there with motorcycle.
As soon as the
motorcycle fell, accused Subhash went near Kunj Behari and fired. Raja Ram fell
down in water filled paddy fields. As Raja Ram tried to get up, accused Surendra
and Hira reached near him and fired. Kunj Behari and Raja Ram died due to fire
injuries then and there and Balbir ran away. I asked accused persons not to
fire which could hit us. Apart from me and Sunder Lal, Lakhpat Sonar also reached
on the place of occurrence from south side and he also shouted that do not
fire, do not kill (Maaro). Hearing this, accused persons ran away from the spot.
After the incident, I stayed for about 30-45 minutes at the spot. During this,
Balbir came on the spot along with 7-8 persons.
aforesaid testimony of PW-2 supports the evidence of PW-1 in all material
respects. He has said that due to the firing by the appellants, the motorcycle
got disbalanced and went towards left strip of the road and PW-1 jumped from the
motorcycle and ran towards north side while Raja Ram ran towards paddy fields in
the west, but Kunj Behari fell there with the motorcycle. PW-2 has further said
that that as soon as the motorcycle fell, the appellant Subhash went near Kunj
Behari and fired.
He has also said that
Raja Ram fell down in the water-filled paddy fields and when Raja Ram tried to
get up, the appellants Subhash and Hira reached there and fired while PW-1 ran
away. He has also disclosed that Sunder Lal and Lakhpat also reached the place
of occurrence and shouted along with him not to fire and hearing this, the
appellants ran away from the spot.
He has also said that
after the incident, PW-1 came on the spot along with 7-8 persons. PW-2 is, therefore,
a direct eyewitness to the firing by the appellants on the two deceased persons
and in the lengthy cross-examination of PW-2 the defence has not been able to
bring to the notice of the court any material to hold that his evidence is not
On the other hand, we
find, on a reading of the cross-examination of PW-2, that he has stated that
Kunj Behari had fallen flat and his face was towards the sky when he was shot
and his head was in the north, one leg in the south and one leg was on the
motorcycle. He has stated that the appellant Subhash fired at Kunj Behari from
the east from a standing position and at that time the barrel of the gun of the
appellant Subhash was downwards on Kunj Behari.
PW-2 has also stated
that there were four paces distance between the place where Raja Ram fell in the
paddy field and the place from where the two appellants entered the field and
the two appellants fired on Raja Ram when he tried to get up. Had PW-2 not seen
the occurrence, he could not have given such details of the occurrence in the witness
box during the cross- examination. The veracity of PW-2, in our considered opinion,
has been tested in the cross-examination and his evidence is, thus, reliable.
do not also think that the evidence of PW-2 could have been discarded on the
ground that he was only a chance witness. The incident took place when the
deceased were traveling on a motorcycle on the road and PW-2 was also coming on
the same road on his cycle when he saw the incident.
This Court has held
in Thangaiya v. State of T.N. (supra) that if a murder is committed in a street,
only passers-by will be witnesses and their evidence cannot be brushed aside or
viewed with suspicion on the ground that they were mere chance witnesses. Moreover,
PW-2 has been named in the FIR as one of the persons who were coming on a cycle
from Dhata side and as one of the persons who shouted at the appellants not to
fire. In State of U.P. v. Anil Singh (supra), this Court has held that when a witness
figures as an eyewitness in the FIR, he cannot be categorized as a chance
Once we accept that
PW-1 and PW-2 were present at the place of occurrence and their evidence was reliable,
the fact that other independent witnesses named in the FIR, such as Sunder Lal
Singh, have not been examined before the Court, cannot be a ground for not
believing the prosecution case. In State of U.P. v. Anil Singh (supra), this
Court has held that the prosecution case cannot be doubted for not examining the
witnesses after taking note of the fact that the public are generally reluctant
to come forward to depose before the Court. We, therefore, do not find any
merit in the submission made by the learned counsel for the appellants that the
prosecution story should not be believed because the independent witnesses have
not been examined.
have also considered the contention of Mr. Hansaria that the time of recording
of FIR at Dhata Police Chowki is doubtful as the FIR was first written by pencil
which was erased and again overwritten as per the evidence of PW-4. We find
from the evidence of PW-4 that although a suggestion was made to him in cross- examination
by the defence that the time of incident in the chik register as the time of
incident was first written in pencil and thereafter erased and again written, PW-4
has said that the suggestion is incorrect. There is no definite evidence before
the Court to come to the conclusion that the time of incident in the FIR was
first written in pencil and was thereafter erased and again written and that
the time of incident as recorded in the FIR was doubtful.
the contention of Mr. Hansaria that there was no recovery of empty cartridges,
we find that the IO (PW-5) has admitted during cross-examination by the defence
that no empty cartridge was found from the passage on which PW-1 ran away from
the spot and he did not find any empty pellet, tikli or cartridge from the spot
where the motorcycle was lying and where the deceased Kunj Behari was shot. PW-5
has also not stated that any empty cartridge was recovered from the paddy field
where Raja Ram was shot, but the fact remains that the deceased Kunj Behari and
Raja Ram were killed by gun shots.
Dr. Anand Swarup
(PW-3), who carried out the post mortem, has described the gun shot wounds of
the deceased Raja Ram as ante mortem injuries in the chest and abdominal cavity
and has opined that the cause of his death is shock and hemorrhage as a result of
the injuries sustained by him. Mr. Hansaria is right that according to PW-3 all
the injuries on the deceased Raja Ram were caused by one gun shot, whereas PW-2
has deposed that both Surendra and Hira fired at Raja Ram, but it appears only
one of them was able to hit Raja Ram with a bullet because of which Raja Ram
PW-3 has similarly
described the injuries on the body of the deceased Kunj Behari as gun shot injuries
in his oval cavity on the left side of the chin and neck and left shoulder and
has opined that the injuries were sufficient to normally cause death. Thus, the
medical evidence supports the eyewitness accounts of PW-1 and PW-2.
submission of Mr. Hansaria that injuries on the body of deceased were not
correlated with the weapons allegedly possessed by the appellants would have been
relevant if the fire arms were recovered from the appellants and the bullets were
also recovered from the body of the deceased or from the place of occurrence.
Regarding his contention
that serological report has not been produced although the blood-stained earth
was collected and that the investigation was started not on 22.09.1979 but only
next day in the morning, these are defects in investigation but such defects cannot
be a ground to disbelieve the prosecution story which has been proved beyond
reasonable doubt through the evidence of the two eyewitnesses as supported by
the medical evidence.
In State of Uttar
Pradesh v. Bhagwant Kishore Joshi (AIR 1964 SC 221), Subba Rao, J., as he then
was, has held that it was necessary for the accused to throw a reasonable doubt
that the prosecution evidence is such that it must have been manipulated or
shaped by reason of the irregularity in the matter of investigation, or that he
was prevented by reason of such irregularity from putting forward his defence
or adducing evidence in support thereof, but where the prosecution evidence has
been held to be true and where the accused had full say in the matter, the
conviction cannot obviously be set aside on the ground of every irregularity or
illegality in the matter of investigation.
In other words,
unless the lapses on the part of the investigation are such as to cast
reasonable doubt about the prosecution story or seriously prejudice the defence
of the accused, the Court will not set aside the conviction.
therefore, do not find any merit in this appeal and we accordingly dismiss the