Ram Prasad & Ors Vs. The State of
U.P  INSC 166 (17 September 1973)
KHANNA, HANS RAJ KHANNA, HANS RAJ
CITATION: 1973 AIR 2673 1974 SCR (1) 650 1974
SCC (3) 388
Indian Evidence Act-Whether every person who
has seen the incident should be cited as a witness by prosecution in the
criminal case-Duty of the prosecution to bring on record full and material
The appellants were convicted u/s 148 and 302
read with Sec. 149 of the I.P.C. The conviction was challenged in the Supreme
Court, inter alia, on the ground that besides the eye witnesses, the F.I.R.
mentioned the names of three more persons who had seen the incident but they
were not examined by the prosecution. In rejecting the contention and
dismissing the appeal.
HELD : Non-examination of some of the
eye-witnesses mentioned in the F.I.R. does not introduce any fatal infirmity to
the prosecution case. It is no doubt true that the prosecution is bound to
produce witnesses who are essential to the unfolding of the narrative on which
the prosecution is based. Apart from that, it cannot be laid down as a rule
that if a large number of persons are present at the time of the occurrence,.
the prosecution is bound to call and examine-each and every one of those
persons. The answer to the question as to what is the effect of the non-
examination of a particular witness would depend upon the facts and
circumstances of each case. In case enough number of witnesses have been
examined with regard to the actual occurrence and their evidence is reliable
and sufficient to base the conviction of the accused thereon, the prosecution
may well decide to refrain from examining the other witnesses. Likewise, if any
of the witnesses is won over by the accused party and as such is not likely to
state the truth, the prosecution would have a valid ground for not examining
him in court. The prosecution would not, however, be justified in not examining
a witness on the ground that his evidence even though not untrue would go in
favour of the accused. It is as much the duty of the prosecutor as of the court
to ensure that full and material facts are brought on the record so that there
may be no miscarriage of justice. The discharge of such a duty cannot be
affected by the consideration that some of the facts if brought on the record
would be favourable to the accused. In case the court finds that the
prosecution has not examined witnesses for reasons not tenable or not proper,
the court would be justified in drawing an inference adverse to he prosecution.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 52 of 1970.
Appeal from the Judgment and Order dated the
10th October, 1969, of the Allahabad High Court (Lucknow Bench) Lucknow, in
Criminal Appeal No. 48 of 1968).
K. B. Rohatgi, for the appellants.
O. P. Rana, for the respondent.
The Judgment of the Court was delivered by
KHANNA, J. This is an appeal by special leave by Ram Prasad (65), his son Udit
Narain (22) and their servant Sri Pal (22) against the judgment of the Lucknow
Bench of the Allahabad High Court affirming on appeal the judgment of the
Additional Sessions Judge Lucknow whereby the three appellants and three
others, namely 651 Sarju Putti and Jaganath had been convicted under section
148 and- section 302 read with section 149 Indian Penal Code and had been
sentenced to undergo rigorous imprisonment for a period of 18 months on the
first count and imprisonment for life on the second count.
The occurrence giving rise to the present
case took place on March 31, 1967 at 2.30 p.m. in front of and inside the
tarwaha of the house of Jaskaran, father of Jagannath accused, in village.
Gadarian Purwa at a distance of two miles from police station. Mandiaon. The
person murdered during the course of the occurrence was Parmeshwar Din (35).
The prosecution case is that Parmeshwar Din
de--eased and Sita Ram (PW 4) purchased two plots of land situated in the area
of village Gadarian Purwa from Paggu and others for Rs.
3,000 as per sale deed dated December 23,
1966. The possession of these plots had been taken by the vendees about one or
two months earlier when they paid Rs. 500 as earnest money. The vendees sowed
wheat in those plots.
Sarju and Putti accused, who are both
brothers, laid claim to, those plots. As Ram Prasad accused was an influential
person, Sarju and Putti sought his assistance in obtaining the possession of
the plots. Ram Prasad is also stated to have been assured by Sarju and Putti
that in case they were successful in getting those two plots', they would give
him half of the land.
On March 31, 1967, it is stated, Parmeshwar
Din was getting the wheat crop standing in the two plots mentioned above
harvested. The plots are at a distance of about 150 paces from the house of
Jaskaran, father of Jagannath accused.
Umrao (PW 1) as well as Sita Ram (PW 4) were
also present in the fields along with Parmeshwar Din. The actual work of
harvesting was being done by seven labourers, four of whom were women. The male
labourers were Shankar, Baddal and Bubba. At about 2.30 p.m., it is alleged, Udit
Narain accused came to Parmeshwar Din and told him that some persons were
waiting for him in the abadi of Gadarian Purwa to have some talks with the
deceased regarding the two Plots in dispute. Parmeshwar Din deceased then went
with Udit Narain. Shortly thereafter, Umrao and Sita Ram PWs heard the cries of
Parmeshwar Din. On looking towards the house of Jaskaran, they found that the
six accused had surrounded Parmeshwar Din and were giving bank a blows to him
in front of that house. The six accused then dragged Parmeshwar Din deceased
inside the tarwaha which had a thatched roof. The tarwaha had one shutterless
opening. Umrao and Sita Ram then ran towards the tarwaha and stood close to the
opening of the tarwaha. The labourers engaged in harvesting also followed Umrao
and Sita Ram to that place. Chandrika (PW 2) and Mohan (PW 3) were passing that
way at that time. Both of them on hearing alarm also came there and saw the
accused giving banka blows to Parmeshwar Din. Umrao and others shouted to the
accused not to kill Parmeshwar Din, but they too were threatened by the
accused. The accused thereafter ran away. Umrao and 652 Others then went inside
the tarwaha and. found Parmeshwar Din lying dead in a pool of blood. A number
of persons then collected 'there.
Umrao got report Ka-1 written by his son Hari
Prasad. Umrao thereafter went to police, station Mandiaon and lodged there
report Ka-1 at 5.30 p.m. Station Officer Tiwari (PW 11) was not present at the
police station at the time he report was lodged. On being informed about the
lodging of the report, the Station Officer went to the place of occurrence and
arrived there at 6.30 p.m. The Station Officer on arrival recorded the
statements of Umrao, Sita Ram and Mohan PWs and prepared inquest report
relating to the dead body of the deceased. The body was thereafter sent to the
mortuary where post mortem examination was performed by Dr. Jaitle on April 1,
1967. Out of the appellants, Udit Narain and Sri Pal were arrested ,on April 7,
1967, while Ram Prasad surrendered in court on April 14, 1967.
The six accused in their statements denied
the prosecution allegations about their having participated in the assault on
Parmeshwar Din deceased. Sarju and Putti also denied the prosecution allegation
that Parmeshwar Din and Sita Ram had purchased the land in question and had
brought the same under cultivation. The case of Ram Prasad and Udit Narain was
that they had been falsely involved in this case 'because of the enmity of Sita
Ram PW with whom, according to these accused, Ram Prasad had an altercation on
an earlier occasion.
The trial court accepted the prosecution case
and convicted and ,sentenced the six accused as mentioned above. The judgement
of the trial Court was, as already stated, affirmed on appeal by the High Court.
In appeal before us, Mr. Anthony on behalf of
the appellants has assailed the conviction of the accused-appellants on the
ground that the evidence adduced by the prosecution in this case is not
reliable and suffers from infirmities. As against that, Mr. Rana on behalf of
the State has canvassed for the correctness of the view taken by the High
It cannot be disputed that Parmeshwar Din
deceased was the victim of a murderous assault. Dr. Jaitle, who performed post
mortem examination on the dead body of Parmeshwar Din, found as many as 23
injuries on the body, out of which 18 were incised wounds, One of the incised
wounds had resulted in cutting the occipital bone and another had resulted in
cutting the frontal bone. The incised injuries, in the opinion of the doctor,
had been caused by some heavy sharp- edged weapon. The death of the deceased
was due to shock and haemorrhage resulting from the head and neck injuries.
The injuries were sufficient in the ordinary
course of nature to cause death.
653 According to the prosecution case, the
injuries found on the body, of the deceased had been caused by the six accused,
including the three appellants. The prosecution, in order to substantiate that
allegation, examined Umrao (PW 1), Chandrika (PW 2), Mohan. (PW 3) and Sita Ram
(PW 4) as eye witnesses of the occurrence These witnesses supported the
prosecution case as given above. The trial court, on consideration of the
material on record, accepted the evidence of the four eye witnesses. On appeal
the learned Judges of the High Court again examined that evidence and found the
same to, be convincing. Nothing cogent has been brought to our notice as may
justify interference with the concurrent findings of the trial court. and the
High Court arrived at as a result of the appraisement of the evidence of the
four eye witnesses.
It has been pointed out that the statement of
Chandrika was, recorded during the investigation of the case 25 days after the
occurrence, and as such, not much reliance can be placed upon the testimony of
this witness. In this respect we find that the evidence of Chandrika shows that
on the morning of the day following the,occurrence, he went to Muzaffarpur in
district Barabanki where his father-in-law was lying ill.
The witness stayed in Muzaffarpur for about
six days and thereafter returned to his village. In the meanwhile, Sub-
Inspector Tiwari had gone back to the police station. The SubInspector
subsequently called the witness and recorded his statement on April 25, 1967.
Chandrika's name as an eye witness of the occurrence had been mentioned in the
first information report which was lodged within about three hours of the
occurrence. In the circumstances, the delay in recording the police statement
of Chandrika by the investigating officer would not justify rejection of
Chandrika's testimony. In any case, we find that apart from the statement of
Chandrika, the prosecution case is also supported by the evidence of' other
three eye witnesses. So far as these witnesses are concerned, their statements
were recorded by the investigating officer soon after he arrived at the place
Argument has also been advanced on behalf of
the appellants that there, is no mention in the first information report that
injuries were caused to Parmeshwar Din deceased by the accused before the
deceased was dragged inside the tarwaha, while, according to the evidence of
the eye witnesses in court, the injuries to the deceased' were caused by the
accused both before he was dragged as well- as inside the tarwaha. Reference to
the first information report shows- that it is recited therein that the
deceased was dragged and given banka blows by the accused. The omission to make
an express mention in the first information report that banka blows were given
to the deceased before he was dragged inside the tarwaha would not in the
circumstances, in our opinion, make much material difference. Assuming that
banka blows were caused to the deceased inside the tarwaha, this fact would not
exculpate any of the accused. The accused at the time of the occurrence were
armed with bankas. They dragged the deceased inside the, tarwaha and gave banka
blows to 654 him. It is plain that the injuries were caused to the deceased
prosecution of the common object of all the accused to cause death of the
deceased. The appellants, in the circumstances, car derive any benefit from the
inability of the prosecution witnesses .state as to which particular injury was
caused which of the accused.
It has also been argued that the evidence of
the eye witnesses is of partisan character and, therefore, It is not safe to
base the conviction ,of the accused upon that evidence. We find it difficult to
accede to this contention beause the trial court and the High Court while
appraising the evidence of these witnesses, considered all the features ,of the
case and came to the conclusion that the evidence of the witnesses was
trustworthy and reliable. We find no cogent ground to take a different view.
Considerable stress has been laid by Mr.
Anthony upon the fact ,that, besides the four eye witnesses who have been
examined in this case, the occurrence, according to the first information,
report, had also been witnessed by Baddal, Shankar and Hubba. These persons
were, however, not examined as witnesses at the trial. It is also pointed out
that in addition to these persons, the occurrence was also ,witnessed by Sham
Lal and Hubba (this Hubba is different from Hubba whose name was mentioned in
the first information report), who also arrived at the scene of occurrence.
Sham Lal and Hubba too. were not examined as witnesses. The non- examination of
these witnesses, in our opinion, would not introduce an infirmity fatal to the
prosecution case: It is no doubt true that the prosecution is bound to produce
witnesses who are essential to the unfolding of the nar- rative. on which the
prosecution is based. Apart from that, it cannot be laid down as a rule that if
a large number of persons are present at the time of the occurrence, the
prosecution is bound to call and ;examine each and every one of those persons.
The answer to the ,question as to what is the effect of the non-examination of
a particular witness would depend upon the facts and circumstances of each
In case enough number of witnesses have been
examined with tregard to the actual occurrence and their evidence is reliable
and .sufficient to base the conviction of the accused thereon, the prosecution
may well decide to refrain from examining the other witnesses. Like-wise, if
any of the witnesses is won over by the accused party and as such is not likely
to state the truth, the prosecution would have a valid ground for not examining
him in court. The prosecution would not, however be justified in not examining
a witness on the ground that his evidence even though not untrue would go in
favour of the accused. It is as much the duty of prosecutor as of the court to
ensure that full and material facts are brought on the record so that there may
be no miscarriage of justice. The discharge of such a duty cannot be affected
by the consideration that some of the facts if brought on the record would be
favourable to the accused. In case the court finds that the prosecution has not
examined witnesses 655 for reasons not tenable or not proper, the court would
be justified in drawing an inference adverse to the prosecution.
So far as the present case is concerned, we
find that the prosecution has examined four eye witnesses of the ence and their
evidence has been found by the trial court and the High Court to be reliable,
convincing and sufficient to warrant the conviction of the accused. It has not
been shown to us that the evidence of the persons who were not examined as
witnesses was essential for the unfolding of the narrative on which the
prosecution was based. The present is not a case wherein the witnesses not
examined could have given evidence on a point regarding which the witnesses
actually examined were not in a position to depose. We are, therefore, of the
view that the failure of the prosecution to examine the persons mentioned above
as witnesses would not justify interference with the judgments of the High
Court and the trial court.
The appeal fails and is dismissed, S.B.W.