Ram Narayan Vs. State
of U.P.  INSC 812 (22 April 2009)
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICITON CRIMINAL APPEAL NO. 1339 OF 2005 Ram
Narayan ...Appellant Versus State of U.P. ...Respondent
Dr. ARIJIT PASAYAT,
in this appeal is to the judgment of a Division Bench of the Allahabad High
Court setting aside the judgment of acquittal recorded by the then III
Additional Sessions Judge, Deoria in Sessions Trial No.347 of 1978. The accused
persons faced trial for alleged commission of offences punishable under
Sections 147, 148, 307 read with Section 149, Section 436 read with Section 149
and Section 302 read with Section 149 of the Indian Penal Code, 1860 (in short
the `IPC'). Nine persons faced trial. All of them were charged under Section
307 read with section 149,436 read with section 149 and 302 read with section
149 I.P.C. Indra Jeet, Awadh Narain and Raj Banshi Tiwari were charged for
rioting under section 147.
whereas the rest under section 148 I.P.C. The incident occurred on 7.7.1978 at
about 7.30 P.M. at three places within Police Station Kotwali, District Deoria.
The F.I.R. was lodged the same night at 8.20 P.M. by Brij Raj Tiwari (PW-1).
One Gunj Prasad Tiwari (hereinafter referred to as the `deceased') was murdered
in the incident whereas Subhash (PW 2), Devi Prasad Pandey (PW 5) and Virendra
Kumar sustained injuries.
case of the prosecution as unfolded during trial through F.I.R. and the
evidence may be related thus. Brij Raj Tiwari (PW 1) resided in village Deoria
Ram Nath, Police Station Kotwali, District Deoria. The accused were also the
residents of the same place. Sarvajeet, Indrajeet and Jagdish accused were real
brothers. Om Prakash was the nephew of Sarvjeet and other. Durga Prasad was the
son of accused Awadh Narain. The accused Rajbanshi Tiwari and Raj Kishore were
Patidars of accused Awadh Narain and the accused Awadh Narain and
accused-appellant belonged to the group of the remaining accused. Enmity on
account of litigation was going on between the family of the informant Brij Raj
Tiwari PW 1 on the one hand and the accused Sarvjeet and Raj Kishore on the
other. Earlier to the present incident, on the eve of Holi some one had
inflicted a knife blow on the accused Sarvjeet in which Subhash Tiwari PW 2
(brother of the informant) was implicated as accused. Sometime thereafter, Hari
Ram first cousin of accused Durga was also inflicted knife blow by someone in
which the informant, his father Guru Prasad the deceased, Mahasarey, Subhash
Tiwari (PW-2) and Jai Shankar were implicated as accused. Proceedings under
sections 107/117 of the Code of Criminal Procedure, 1973 (in short the `Code')
had also been drawn between the informant and others on one side and the
accused Durga and Hari Ram on the other. In front of the door of the house of
the informant there was a flour mill adjacent to which on the northern side the
house of the accused Durga Prasad and Hari Ram was situated and on the eastern
side thereof the house of the accused Sarvjeet was situated at a distance of
about 10 paces from the flour mill. During the thrashing season, dust and sound
came to be produced because of generation of the flour mill to the disliking of
the accused. The accused Sarvjeet, Durga Prasad and Hari Ram had applied for
electric disconnection of the informant before the Electricity Department prior
to the present incident in which , the accused Raj Kishore was cited as a
witness. A case under Section 133 of Code was instituted against the informant
by the police which came to be decided in favour of the informant. So, there
was a long string of enmity between the two sides.
The present incident
occurred in three parts. At about 7.30 P.M. on 7th July, 1978 Subhash- the
younger brother of the informant was sitting at his grocer's shop on the
crossing in front of the house of Sri Vishwa Nath Pandey, Advocate. All the
accused with 2 or 3 other companions reached there. Sarvjeet and Om Prakash had
bombs in their hands; Jagdish had a gun; Ram Narain had country made pistol;
Raj Kishore had a spear. Durga Prasad had a Pharsa and the remaining accused
had lathis. As soon as they reached the shop of Subhash, accused Sarvjeet and
Om Prakash attacked Subhash by means of bombs, Ram Narain by means of country
made pistol and Jagdish by means of gun. Subhash ran for his life and anyhow
saved himself but was hurt in his leg in this process. This occurrence was
witnessed by Jagdish Mani, Chandbali Pasi, Brijesh Tiwari and others.
The second part of
the incident was that the accused came running to the grocer's shop of the
informant at Bhatwalia Crossing in search of Subhash and not finding him there,
threw bombs and also fired. The accused Indrajeet set fire to the shop of the
informant which was reduced to ashes. Mahasarey- brother of the informant, Devi
Prasad Pandey, Surendra Prasad, Rajesh Singh and others witnessed this
incident. Then the accused came running to the door of the house of the
informant where Guru Prasad the deceased was present. They inquired from him
about Subhash saying that he would not be left alive that day. Guru Prasad
wanted to know as to what the matter was. But the accused Sarvjeet instigated
the remaining accused saying that if Subhash was not available, he (Guru
Prasad) should be killed. Instantaneously, Sarvjeet attacked Guru Prasad Tiwari
throwing a bomb and Ram Narain by means of the country made pistol. Guru Prasad
died on the spot. The incident was witnessed by the informant, Ram Darash
Tiwari, Bhagirathi Yadav, Nand Kishore, Hari Prasad and Munni-sister of the
informant. The accused persons then ran away. At the time of the incident
electric light was available at the door of the informant. This was the third
part of the incident.
Leaving the dead body
of his father at the door, the informant went to the Police Station, and lodged
the F.I.R. resulting in registering of the case.
taken up by Tota Ram Gupta (PW-13). It may also be related here that the
injuries of Subhash Tiwari (PW 2), Virendra and Devi Pandey (PW-5) were
examined on 7.7.1978 at 10.45 P.M., 10.55 P.M. and 11.05 P.M. respectively by
Dr. J.N. Thakur (PW 8).
After completion of
investigation charge sheet was filed and the accused persons faced trial as
they denied accusations.
were examined to further prosecution version.
The trial Court held
that the accused persons were entitled to acquittal as the witnesses examined
did not establish the accusations. An appeal was filed questioning the
The High Court found that
PWs 1, 4 and 6 who are eye witnesses clearly established the accusations. It
also found that the source of light was mentioned in the FIR. Accordingly, the
acquittal was set aside and appeal was allowed qua the present appellant.
It was noted that the
appeal had abated in respect of accused Sarvjeet, Om Prakash, Raj Kishore and
Awadh Narain who died during the pendency of the appeal. The acquittal recorded
for the remaining accused persons namely, Indrajeet, Jagdish, Ram Narain, Durga
Prasad and Raj Banshi Tewari was maintained.
counsel for the appellant submitted that the aspects highlighted by the trial
Court to record acquittal should not have been upset by the High Court when the
view taken by the trial Court was not perverse and was a possible view.
counsel for the respondent -State on the other hand supported the judgment of
the High Court.
various aspects which weighed with the trial Court to record acquittal and
which weighed with the High Court to record conviction need to be noted.
first circumstance highlighted by the trial Court related to the written report
i.e. FIR. It noted as follow:
An FIR has been
lodged at the P.S. after deliberation and consultation including that of police
and does not appear to have been prepared by the informant only, on his own
showing and showing and contained twisted and false version of occurrence and
was also ante timed.
That incident took
place about 7.30 p.m. on 7.7.1978 and the written report was prepared and lodged
at P.S. at 8.20 p.m. even when the occurrence itself had taken place at three
different places in quick succession of each other and had taken about half an
hour or so in all even when the P.S. was 1= k.m. far from the place of
That the informant
(PW-1) had not even witnessed the occurrence at first two places but the
written report shows as itself that PW-1 had witnessed the entire occurrence
from start to end at all the three places as because it was written in that
That in evidence the
informant (PW-1) admitted that neither PW-2 nor PW-3 or any one else as a
matter of fact had told him the names of the witnesses of the first and second
incidents yet their names do find place in the written report which PW-1 was not
able to explain at all.
All the PWs examined
including informant PW-1 Brij Raj Tiwari started changing the time of
occurrence at the stage of evidence as in the FIR the gap was only 50 minutes.
PW-1 says he reached
his house at 7.00 p.m. and G.P. Tiwari was shot dead within 4-5 minutes showing
that the first two incidents did not take place at 7.30 p.m. Injury to Subhash
Tiwari is not mentioned in the GD, Ka-11. Subhash (PW-2) says that occurrence
took place at 7.15 p.m. at his grocery shop.
Kumari Munni (PW-4)
and Nand Kishore (PW-6) had not told any time to IO. In exhibit ka-6 copy of
the FIR time of occurrence is mentioned as 7.45 p.m. In exhibit Ka-14 challan
of dead body, the time is 7.45 p.m. In the inquest report there is overwriting
about time. In exhibit ka-6 to ka-9 the letters written for medical examination
of injured there is no crime number or sections of crime mentioned. This shows
On the other hand the
High Court noted as follows:
The Trial judge had
on justification to criticize the F.I.R as being too prompt.
8 FIR was lodged by
PW-1 on getting information of the first two parts of the incident from his
brothers Subhash (PW-2) and Mahasarey (PW-3) and there was nothing wrong in
including full particulars of those two parts of the incidents. Rather by
giving details of earlier parts in the FIR it appears to be a genuine document
ringing of spontaneity. Cloud could not be imported on the 3rd part of the
second circumstance relates to the medical evidence qua the food contents. The
trial court found as follows:
That semi digested
food (rice, dal, mango) were found in the stomach of Guru Prasad which showed
and suggested that at least 2 to 2 = hours prior to his death, the deceased
must have taken the meals and if occurrence had taken place at 7.30 p.m. the
deceased must have died at about 5.30 which was no body case.
According to the post
mortem examination report the injury No.1 could be caused by a bomb which
appears to be wrong because the doctor had also mentioned in the report as well
as stated in evidence that the wound showed blacking and tattooing, which was
not possible in case it was caused by bomb.
That the doctor also
admitted when cross examined that he had not consulted any ballistic expert and
deceased could be injured in a sleeping condition also and wads are generally
found in gun.
That he did not find
any pieces of glass, nails or metallic in the injury No.1 of the deceased and
he could not give any definite opinion as to whether injury No.1 could be
caused by gun shot on the head from a close range nor he could give definite
opinion if it caused by bomb blast.
High Court's findings relating to medical evidence are as follows:
High Court did not
agree with the trial Judge that the time of the incident was rendered doubtful
because of the stomach contents of the deceased.
That the gist is that
the state of stomach found at the time of medical examination is not a safe
guide for determining the time of occurrence because that would be a matter of
That the trial court
was not justified in doubting the time of incident on the basis of stomach
contents of the deceased.
That the trial Judge
wrongly held that the ante mortem injury No.1 of the deceased was not caused by
bomb instead it was caused by gunshot.
That the blackening
and tattooing around the skin did not mean that it was not a blast injury nor
did the recovery of two wadding places from the lacerated brain tissues negate
it to be a bomb blast injury.
However, under the
stress of cross examination doctor (PW-7) stated that he had not taken the
opinion of Ballistic Expert and could not definitely say whether ante mortem
injury No.1 was caused by bomb blast or gunshot.
third aspect related to the presence of source of light. The trial court noted
That according to the
written report the only source of light present at the scene of occurrence was
that of bulb lighted at the door of the house of informant which was claimed by
the prosecution and report was obtained from the Electricity department but
even that report was not on record nor any one examined from the Electricity
Department to prove the case.
the other hand the High Court' s finding are as follows:
For no good reason the
trial Judge doubted the presence of light at the spot where the third part of
the incident took place.
In view of the
overwhelming evidence on the point of light on the spot though the bulb glowing
at point "F" shown in the site plan by the I.O. it hardly affected
the prosecution case that the bulb was not produced by the prosecution at the
of the aspects which weighed with the trial Court related to the ineffective
investigation, if any. The same reads as follows:
That even the
investigation of this case was tainted from start to end on their own showing
of the prosecution.
That alleged enmity
and fired cartridge recovered from the road after the occurrence was `Gevelot'
but according to the recovery memo it was `Elly'.
That not a single
line in the case diary was written by I.O. himself.
recovered from the scene of the occurrence were not sent to the police station
even next day of occurrence and were deposited on 9.7.1978 and all parchas were
sent to the police office as late as on 2.8.1978 excepting two but why they
were sent so late was not explained either by prosecution or any body examined
in this case including I.O.
far as the analysis of the evidence is concerned the trial court referred to
The very fact that
the first two incidents are found to be not proved and concocted, the 3rd
incident could hardly be true, especially when FIR is lodged after deliberation
and is ante time.
Brij Raj Tiwari
(PW-1) wrote the FIR as if he had seen the first two parts of the incidents
though he had not witnessed the same. This shows the extent to which he can go
to tell lies. He states that Kumari Munni (PW-4) came out to give clothes to
him when the father was killed but PW-4 contradicts him by saying that she came
out after hearing the alarms. He mentioned in FIR that Raj Kishore had spear
but in deposition he assigned a gun to him and does not say that anyone else
had a spear injury to the deceased was not caused by bomb at all. PW-1 admits
he was ex convict and involved in lot of litigations. He says he cannot tell
the name of person who told him about the first two incident. He had not seen
the clothes of Subhash Tiwari (PW-2) nor did he know of the injury of D.P.
Pandey (PW-5) yet he mentions these facts in the written report. He says that
accused came looking for Subhash and not finding him killed the father but none
of them tried to harm him or other members of family. This is strange.
Kumari Munni (PW-4)
changes her story about coming out of the house on alarm being raised. She
admits that her mother and other ladies did not come out of the house which is
strange. She claims that witnesses had come before the arrival of the accused
which is against prosecution story.
Kishore (PW-6) is a neighbour. He claims he was at his door when he heard
alarms and on reaching the scene he saw the accused were inquiring Subhash and
then hurled bomb and then fired on the deceased. This is contrary to the
versions of PW-1 and PW-4 according to whom witnesses were already there. He
has his own enmity with the accused. He says that he stood at north western
side of the house but did not go to the door of Brij Raj Tiwari but in his
statement he says he went to the door of Brij Raj Tiwari. He says that deceased
went a little on the western side after being injured and fell down there near
the road. This is nobody's case. He says that he did not talk with the
informant nor did he see him doing anything.
analysis made by the High Court does not suffer from any infirmity. On the
contrary, the trial Court's judgment proceeded on surmises and conjectures and
was based on totally inappropriate appreciation of the evidence. Relevant
aspects were not considered and irrelevant aspects were taken into account.
Therefore, the High Court was justified in recording conviction.
appeal is without merit and is dismissed.
(Dr. ARIJIT PASAYAT)
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