Vs. State of U. P  INSC 328 (13 May 1994)
Uddin (J) Faizan Uddin (J) Sahai, R.M. (J) Hansaria B.L. (J)
1994 SCC Supl. (2) 289 JT 1994 (4) 62 1994 SCALE (2)970
Judgment of the Court was delivered by FAIZAN UDDIN, J.- The appellants Mani
Ram, Agya Ram, Ramjiyawan,Kewal, Sant Ram, Siyaram and Janjali were charged and
tried under Sections 147, 148 and 302/149 of the Penal Code for committing the
murder of one Basdeo at about 4.00 p.m. on 27-1-1978. The learned IV Additional Sessions Judge, Basti in
Sessions Trial No. 195 of 1978 convicted the appellants Mani Ram and Agya Ram
under Sections 148 and 302 read with Section 149 of the Penal Code and
sentenced them to undergo rigorous imprisonment for two years and life
imprisonment respectively while the remaining appellants, namely, Ramjiyawan, Kewal,
Santram, Siyaram and Janjali were convicted under Sections 147 and-302 read
with Section 149 of the Penal Code and each one of them was sentenced to
undergo rigorous imprisonment for one year and life +From the Judgment and
Order dated 18-5-1992 of the Allahabad High Court in Crl. A. No. 2063 of 1979
290 imprisonment respectively. All the sentences were directed to run
concurrently. These sentences and convictions awarded to the appellants have
been affirmed by the High Court of Allahabad in appeal against which this
appeal by special leave has been directed.
prosecution case as it emerges from the FIR Ext. Ka-2 lodged by the informant Prabhoo
Nath, PW 2 on 27-1-1978 at 6.25 p.m. in the Police Station, Sadar Bazar, Basti
(U.P.) is that the appellants and deceased Basdeo, informant Prabhoo Nath, PW 2
brother of the deceased and their father Bali were on inimical terms as there
were criminal and civil cases pending between them since before the occurrence.
It is said that on 27-1-1975 at about 1.00 p.m. deceased Basdeo along with his
brother Prabhoo, PW 2 had gone from their Village Bighia to Gotwa Bazar for
marketing and while they were returning back to their village at about 4.00
p.m. and had reached near the government tubewell in Village Kuri, all the
appellants suddenly emerged from a sugarcane field and surrounded them.
Appellants Mani Ram and Agya Ram are said to be armed with country-made pistols
while rest of the appellants were armed with lathis. It is said that on the
exhortation of appellant Sant Ram to kill them and not to let them escape, the
appellants Mani Ram and Agya Ram opened fire at Basdeo with their country-made
pistols and the rest of the appellants assaulted him with lathis. The cries of
the informant for help attracted the attention of Ram Pher, Bhurkul and Ram Ajore,
all belonging to the village of the informant and who were also coming behind
them, who rushed at the spot and saw the occurrence. Thereafter the appellants
made their escape good from the place of occurrence. Informant Prabhoo Nath, PW
2 the brother of Basdeo who was accompanying him at the time of occurrence
could not dare to come forward to the rescue of his brother Basdeo due to the
fear that he may also be shot at by the appellants. Prabhoo Nath took injured Basdeo
to the police station on a rickshaw where he lodged the FIR Ext. Ka-1 regarding
Basdeo was sent to the Civil Hospital, Basti where he was medically examined by
Dr Chaturvedi who found injuries on his person as per injury report Ext. Ka-5.
Basdeo died in the hospital on the same evening at 7.15 p.m. Dr S.G. Tekariwal
PW 1, performed the autopsy over his dead body and as per his postmortem report
Ext. Ka-1 found the following injuries on his person :
Contusion 10 cms.x 8 cms. face left side, just in front of left lobe
Contusion 5 cms. x 1.5 cms. chin front c underlying fracture of mandible front,
3 cms. wide part of whole mandible front was separate from rest of mandible (in
wound 3 cms. x 1 cms. bone deep scalp left side parallel to midline, 9 cms. above
wound 4 cms. x 0.5 cms. x bone deep scalp left side 2.5 cms. above and parallel
to injury 3.
wound 3 cms. x 0.5 cms. x bone deep scalp right side 10 cms. above right ear.
Lacerated wound 3 cms. x 1 cms. x bone deep, back of (occipital region)10 cms. behind
the left ear.
Multiple gunshot wounds (50 in number) in area of 17 cms. x 13 cms. on each
right shoulder and upper arm front and first part largest paper 291 torn x
muscle deep and smallest 0.2 cms. x 0.2 cms. x superficial; irregular
blackening tattooing scorching present. (emphasis supplied) 8.Abrasion 2 cms. x
2 cms., chest right side 5 cms. superolateral nipple.
4 cms. x 3.5 cms. back of et. forearm 18 cms.
(4 in number) in area of 10 cms. x 6 cms. on the back of forearm and wrist
crossing each other underlying fracture of right radius bone 2 cms. above wrist
Abraded contusion 9 cms. x 8 cms. back of right hand.
Contusion abrasion 8 cms. x 5 cms. left arm lower part, oblique back and outer
pan just above elbow.
Contusion multiple (6 in number) in area of 17 cms. x 1 cms. left from back and
outer part, crossing each other.
Multiple contusions in one of 14 cms. x 11 cms. back of left hand and wristjoint.
Lacerated wound 2 cms. x 0.5 cms. x bone deep left leg front 20 cms. below knee
Abrasion 2 cms. x 0.5 cms. left leg front 8 cms. below knee.
Contusion 10 cms. x paper torn front and lower part of left leg including on
paper torn c underlying fracture of left leg lower part, both bones paper torn.
contusions (5) in area of 11 cms. x 8 cms.
leg x paper torn.
2 cms. x 0.3 cms. right leg front, 14 cms.
ankle joint paper torn.
to the evidence of Dr Tekariwal, PW 1, injury 7 alone was caused by a firearm
and the remaining injuries were caused by hard and blunt objects like lathi.
Ext. Ka- 1 is the postmortem report prepared and signed by him. In the opinion
of the doctor the death of the deceased was due to the injuries on his head as
well as due to the unconsciousness of the victim.
the trial all the appellants adjured to their guilt and pleaded that they were
falsely implicated due to enmity.
learned trial Judge recorded the conviction of the appellants on the solitary
evidence of Prabhoo Nath, PW 2, the brother of the deceased by holding that his
testimony was reliable and free from all taints. The High Court also on perusal
of the testimony of Prabhoo Nath, PW 2 came to the conclusion that his evidence
is free from contradiction and he being a reliable witness to the occurrence,
conviction of the appellants can be based on his sole testimony.
counsel appearing for the appellants strenuously urged that Prabhoo Nath, PW 2
is none else but the real brother of the deceased and, therefore, he is a
highly interested witness and as such his sole testimony should not be accepted
in convicting the appellants without any corroboration from independent source.
He also submitted that the evidence of the solitary eyewitness Prabhoo Nath is
not consistent with the medical evidence which fact by itself is sufficient to
hold that he is not an eyewitness to the incident but a got-up witness which
fact has been ignored by both the courts below and, therefore, the findings of
the two courts below suffer from serious infirmity and the conviction of the
appellants could not be sustained. On a close scrutiny of 292 the evidence of Prabhoo
Nath, PW 2 and the evidence of Dr Tekariwal, PW 1, we find that there is great
force in the aforesaid submissions.
clearly turns out from the evidence of Prabhoo Nath, PW 2 that Ram Pher, Bhurkul
and Ram Ajore of his village had also arrived at the place of occurrence just
at the moment when the assault was being made on his brother deceased Basdeo
but none of these independent witnesses have been examined by the prosecution. Prabhoo
Nath, however, stated that the witness Ajore could not appear as a witness in
this case because a criminal case against him was going on. He also deposed
that Ram Pher and Bhurkul also could not appear as witnesses due to fear and
having been paid for not appearing as witnesses. This statement of Prabhoo Nath,
PW 2 is only speculative as according to his own statement he did not meet any
of these witnesses nor this information was based on any source whatsoever. It
is thus clear that the prosecution withheld the independent witnesses and had
only chosen to examine the interested witness Prabhoo Nath, PW 2 who is the
real brother of the deceased.
from the above facts it may be pointed out that Prabhoo Nath, PW 2 admitted in
cross-examination that soon after the appellants emerged from the sugarcane
field and when the appellant Santram challenged Basdeo, he started running and
at that point of time the appellant Mani Ram was standing at a distance of
60-70 yards towards east-west and the appellant Agya Ram who was standing at
distance of about 4-5 feet from Mani Ram chased Basdeo and both of them fired
at him from their kattas while the deceased was running.
statement clearly goes to show that the deceased was fired at from behind when
he was running and the appellants Mani Ram and Agya Ram were chasing him. That
being so the bullet or pellet injuries should have been caused on his back or
at least somewhere behind his shoulder but as stated earlier according to the
medical evidence and the postmortem report injury 7 was caused by a firearm. A
perusal of injury 7 will distinctly go to show that there were multiple gunshot
wounds on an area 17 x 13 cms on right shoulder and front of upper arm and
outer part but there was no injury either on the back or anywhere behind the
shoulder. There is no other gunshot injury except injury 7. Neither the doctor
who first examined the injured Basdeo nor the doctor who performed the
postmortem found any injury on the back or back portion of the shoulder to lend
support to the evidence of the sole eyewitness Prabhoo Nath. It is well settled
by long series of decisions of this Court that where the direct evidence is not
supported by the expert evidence then the evidence is wanting in the most
material part of the prosecution case and, therefore, it would be difficult to
convict the accused on the basis of such evidence. If the evidence of the
prosecution witnesses is totally inconsistent with the medical evidence this is
a most fundamental defect in the prosecution case and unless this inconsistency
is reasonably explained it is sufficient not only to discredit the evidence but
the entire case. In the present case as noticed above the evidence of the
solitary witness Prabhoo Nath is wholly inconsistent with the medical evidence
and, therefore, it is difficult to accept him as an eyewitness to the
occurrence and therefore it would not be safe to base the conviction on the
solitary evidence of such a witness. There is no other evidence to support the
prosecution case. Consequently the conviction of the appellants deserves to be
the result the appeal succeeds and is hereby allowed. The conviction of the
appellants Mani Ram and Agya Ram under Sections 148 and 302/149 of 293 the
Penal Code with sentences thereunder is set aside. The conviction of the
appellants Ramjiyawan, Kewal, Santram, Siyaram and Janjali under Sections 147
and 302/149 with sentences thereunder is also set aside and all the appellants
are acquitted of the offences charged with. If the appellants are not required
in any other offence they shall be released forthwith.