REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1022 OF 2004

OM PRAKASH       … APPELLANT

Versus

STATE OF U.P.    … RESPONDENT

J U D G M E N T

S.B. SINHA, J.

1. This appeal is directed against a judgment and order dated 14.5.2004

passed by the High Court of Judicature at Allahabad in Criminal Appeal No.

1472 of 1981 whereby and whereunder the appeal preferred by the appellant

herein  against  a  judgment  of  conviction  and  sentence  dated  30.6.1981

passed by Sri R.K. Mishra, III Additional Sessions Judge, Shahjahanpur in

Sessions Trial  No. 418 of 1980 holding that the appellant  was guilty for

commission of offences under Sections 148, 452 and 302 read with Section

149  of  the  Indian  Penal  Code  and  sentencing  him to  undergo  rigorous

imprisonment for 18 months, 18 months and life imprisonment respectively,

was dismissed.

2. Appellant was prosecuted in respect of commission of offences, the

incident whereof took place on or about 15.8.1979 at about 9.30 p.m. in the

house of one Mewa Ram.  Janamashtami festival was being celebrated on

that  night.   Dinesh  Kumar and  Girish  Kumar,  the  sons  of  the  informant

Mewa Ram, Smt. Ramlali, his wife, son Ram Rakshapal, the deceased and

his  wife Smt. Neha were busy in offering puja to  the  deity.   Allegedly,

Dinesh Kumar, Ram Rakshpal, Ram Pal and Girish Kumar, sons of Mewa

Ram were found guilty for commission of  an offence under  Section  307

wherefor Ram Shanker son of Chhotey Lal (accused No. 1) had lodged a

First Information Report (FIR).  All the four sons of the informant preferred

an appeal against the said judgment of conviction and were released on bail.

Admittedly, there existed a dispute with regard to a house property between

Shri  Krishna,  father  of  Pappu (accused No. 7)  on the one hand,  and the

informant  as  well  as  his  four  sons  on  the  other,  wherefor  a proceedings

under Section 107 of the Code of Criminal Procedure had been initiated.   

3. Before adverting to the details of the prosecution case, we may notice

the inter se relationship amongst the accused.  Accused Ram Shanker and

Ram Bharose were real  brothers;  accused Dharmandera was son  of  Ram

Shanker  and  others  were  family  members  or  relatives  of  Ram Shanker.

Appellant  before  us  was  not  concerned with  the  aforementioned dispute.

We may furthermore notice that whereas all the 7 accused had been found

2

guilty  of  commission  of  the  offence  of  murder  of  Ram  Rakshapal

(deceased), son of Mewa Ram by the learned trial judge, the High Court had

found the appellant only guilty of firing of a shot at the deceased, opining

that  participation  of other  accused in the commission of  the said offence

was not  proved beyond doubt.    We may furthermore notice that  during

pendency of the appeal before the High Court Ram Bharose son of Chhotey

Lal and Ram Shanker, son of Rudra Prasad expired.   

4. The First Information Report, as noticed above, was lodged by Mewa

Ram (P.W.1) on 16.8.1979, stating:-

“This  is  to  bring  to  your  kind  notice  that approximately  four  years  ago Rama Shankar  s/o Chotte  Lal  Brahman  lodged  a  criminal  case  u/s 306  against  my  son  Dinesh  Kumar,  Ram Rakshapal,  Rampal  and  Girish  Kumar  in  which matter  the  four  were  convicted.   They  were released  on  bail  by the  High  Court.   Ever  since Rama Shankar and his son Dharmendra and Ram Bharose  and  Om  Prakash  s/o  Ramchandar  and Satish  s/o  Rameshwar  and  Ram  Shankar  s/o Rudraprasad  and  Pappu  alias  Suresh  s/o  Sri Krishna were seeking revenge.  Sri  Krishna also involved  us  in  the  matter  of  partition  of  house under  107  which  took  place  in  the  court  of Pargandhibari, Tilhar.  This further aggravated the enmity, so that tonight around half past nine when I was sitting on the cot in front of the door under the  roof  while  my  son  Dinesh  Kumar,  Shashi Kumar,  my  wife  Ramlali  and  my  son Ramrakeshpal and his wife Neha were performing Janamashtami  puja  in  the  2  kitchens,  then  Om Prakash, Ram Bharose each carrying their licensed

3

guns  and  Dharmendra  and  Satish  carrying  small guns  (tamancha)  and  Pappu  alias  Suresh  and Ramashankar carrying guns in their hands entered my house  from the  eastern  gate  on  which  doors were  not  attached.   Near  the  thatched  roof  a lantern was alight and in front of Girish Kumar’s room a  kerosene  wicked  box  was  burning.   On hearing the foot steps of above named accused I inquired.  On  my  query  my  son  Ram  Rakshpal came out from kitchen and Om Prakash instantly fired at  my son from his  gun.   I  and my family raised alarm.  On hearing the shouts my nephew Ishwar Chand and Suraj Prasad came to the roof carrying a battery.  They saw under the power of the  torch  that  Rambharose  and  Dharmendra, Satish,  Ramshankar,  Pappu  alias  Suresh  and Ramshankar also fired at my son Ram Rakshapal from their guns and small guns (tamancha).   My son  received  gun  shots  and  he  fell  down  there only.  My son Dinesh Kumar, Shashi Kumar, my wife  Ramlali,  Neha  w/o  Ram Rakshpal  and  my nephew Ishwar Chand and Suraj Prasad also saw these people under the light of torch, Lantern and kerosene  box  wick and clearly  recognized  them. After the accused ran away from the eastern side we went  and saw and found that  Ram Rakshpal had died.  I could not care to report the incident because of the fear of the accused.  Now I came to lodge the report written by my brother.  Report be registered and legal action be taken now.  Because of rain the corpse of Ram Rakshpal was removed from the courtyard to the roof.”

5. There exists a controversy as to whether the said report was lodged at

4.45 a.m. or 4.45 p.m. on 16.8.1979.   Typed copy of the FIR, however,

show that it  was lodged at 4.45 p.m. and not at 4.45 a.m.  We may also

4

notice that the Investigating Officer while lodging the FIR stated that the

same had been lodged at 9.30 p.m. on 16.8.1979.  Admittedly, the FIR was

sent to the court of Chief Judicial Magistrate only on 17.8.1979.  Neither

any inquest report nor any seizure memo had been proved.  The documents

relating to post-mortem examination of the dead body was received by the

Autopsy  Surgeon  at  about  10.45  a.m.  on  17.8.1979.   The  dead  body,

however, was received at about 2.20 p.m. on that day and post-mortem was

conducted at 2.30 p.m.  Interestingly, the death, according to the Doctor, is

said to have taken place 3-4 days prior to the post-mortem examination.  In

the said report, it was stated:

“Average age built body Eyes closed, Mouth half open,  Abdomen  scrotum  and  Penis  distended Blister present at places skin peeling off at places. Rigor  Mortis  passed  off  from  both  upper extremities  but  slightly  present  in  lower extremities.”

6. The FIR was scribed by one Ganga Sahai.  He was brother of Mewa

Ram.  He was, however, not ordinarily a resident of village Parawnia where

the incident took place but was a resident of Tilhar.   

7. The manner in which the incident had taken place was noticed by the

High Court, which is reads as under:

5

“Dinesh Kumar and Girish Kumar sons of Mewa Ram,  Smt.  Ramlali,  wife  of  Mewa  Ram,  Ram Rakshapal son of Mewa Ram and Smt. Neha wife of  Ram  Rakshapal  were  busy  in  worship;  Om Prakash  and  Ram  Bharosey  armed  with  their licensed  guns;  Dharmendra,  Satish  and  Ram Shanker sons of Shhotey Lal armed with country made  pistols  and  Pappu  alias  Suresh  and  Ram Shanker  son  of  Rudra  Prasad  armed  with  guns entered  into  the  house  of  the  informant  through eastern side where there was no gate.  Lantern and Dhibari  were  glowing.   When  Mewa  Ram, informant  objected  to  it  his  son  Ram  Rakshpal came out of the kitchen. Om Prakash fired on him and the shot hit him (Ram Rakshapal).  Thereafter, other  accused also fired and Ram Rakshapal  fell down  on  the  spot.   When  alarm  was  raised  by Mewa Ram, his nephews Ishwar Chand and Suraj Pal PW2 with their torches reached the roof and saw the  accused persons  inside the house  of  the informant.   After  committing  the  crime,  the accused persons made their escape good.  Mewa Ram went near his son Ram Rakshpal and found his son to be dead.  Due to fear, Mewa Ram could not  proceed  immediately  to  the  police  station, which was at the distance of about four miles from the  village.  He  ultimately  got  FIR  scribed  from one Ram Sahai  resident  of  the same village and lodged it at police station Jaitipur on 16.8.1979 at 4.45 A.M. against the appellants.”

8. The  prosecution  in  support  of  its  case,  inter  alia,  relied  upon  the

evidence of Mewa Ram (PW-1), Surajpal son of Ganga Singh (PW-2), and

Dinesh Kumar, son of Mewa Ram (PW-4).   

6

Mewa  Ram  (PW-1)  in  his  examination-in-chief  reiterated  the

averments made in the FIR.  We may, however, notice that according to him

Om Prakash and Ram Bharose had licensed guns and all others were having

country-made pistols.  Whereas Om Prakash was said to have fired from a

distance of 4-5 paces, other accused allegedly fired from a distance of 2-3

paces only.  PW-1 was supported by the other prosecution witnesses.  

We may also  notice  that  in  the  post-mortem report,  the  following

ante-mortem injuries were found.

“1. Gunshot wound of entry 0.5 cm x 0.5 cm x bone deep  on right  side  face  0.5  cm in  front  of tragus  Rt.  ear.   No  blackening  around  wound present.  Margins inverted.  Direction from the Rt. side ramus & Rt. Mandible fractured.  

2. Gunshot wound of entry 0.5 cm x 0.5 cm x muscle deep on Rt. side neck 4 cm below Rt. angle of Jaw Direction from right back to left.  Margins inverted.  No blackening or charring present.  

3. Gunshot wound of entry 0.5 cm x 0.5 cm x chest  cavity  deep  through  and  through  Rt.  side chest  8 cm.  Above Rt. nipple at 11’O Clock in position from nipple.

4. Gunshot wound of exit 1 cm x 2 cm x cavity deep  through  &  through  communicating  injury No.3 on back of Rt. Shoulder, 9 cm below tip of Rt. shoulder posteriorly.  Margins everted.

7

9. Dr.  M.L. Tandon,  Autopsy Surgeon who was examined before  the

learned trial  judge as PW-6 stated that there were three wounds of entry,

whose size and direction were same.  He furthermore opined that injuries

caused to the deceased was only possible if shots had been fired from his

right side.  He furthermore was of the opinion that the duration of time of

death  may  vary  by  about  6  hours.   We  have  noticed  hereinbefore  that

according  to  the  post-mortem report,  Blister  was  found  to  be  present  at

places and skin was also peeled off at places. Rigor Mortis passed off from

both upper extremities but slightly present in lower extremities.   

10. On the date of occurrence, according to the prosecution witnesses, it

was raining and the dead body was kept under the Chappar. The prosecution

failed to obtain an explanation from the Autopsy Surgeon as to how he had

opined  that  death  had  taken  place  3-4  days  prior  to  his  post-mortem

examination although he examined the dead body within 41 hours from the

time of occurrence.  

11. It is furthermore evident that all the prosecution witnesses stated that

all the accused persons had fired from the respective firearms.  According to

them at least 7 shots were fired; 3 shots had hit the person of the deceased.

If that be so, more than one gun must have been used.  Appellant, as noticed

hereinbefore, is said to have been fired a shot from his licensed gun.  Its use,

8

however, has not been established by the prosecution as the report of the

ballistic expert is silent in that regard.  The empties which were found at the

spot  had not  been examined by any ballistic  expert.   The empties  which

were recovered from the dead body were not matched with the gun allegedly

used.   

We may notice that two metallic pellets were recovered from the dead

body.  Empties had not been shown to the expert; even the attention of the

Autopsy Surgeon was not drawn thereto.  Although shots were said to have

been  fired  from a  distance  of  2-3  paces,  no  blackening  or  charring  was

found  to  be present.   If  the  shots  were  fired from a  close range,  it  was

expected  that  blackening  and  charring  would  have  been  noticed  by  the

Autopsy Surgeon at the entry point.   

12. Learned Sessions Judge and the High Court,  with respect,  failed to

apply their mind as regards the time of lodging of the FIR.  Hirdey Narain

Shukla, the Head Constable attached with Police Station who was examined

as PW-3 before the learned trial judge stated that the FIR was lodged at 4.45

a.m. and he had recorded the same immediately.  According  to  him, the

special reports were sent by 6.00 a.m. through a constable.  However, the

Investigating Officer did not say so. As we have noticed hereinbefore, he, in

his evidence, categorically stated that he had recorded the FIR at 9.30 p.m.

9

No evidence had been brought on records to show that investigation had

started on 16.8.1979.  A site plan was prepared but it does not bear any date.

The prosecution has not explained as to why the FIR was sent to the court of

Chief Judicial Magistrate on 17.8.1979 and why the dead body was not sent

for post-mortem on 16.8.1979 itself.   

13. The High Court, in our opinion, committed a serious error insofar as

it proceeded on the basis that shots fired by the appellant caused the fatal

injury.  The High Court did not analyze the evidence on record as to who

caused the other firearm injuries.  If the prosecution witnesses, who were

said to be the eye-witnesses, were to be believed, 6 out of 7 accused could

not have been acquitted and particularly those who had direct enmity with

Mewa Ram and his sons. Although Suraj Pal (PW-2) son of Ganga Singh

denied the suggestion that scribe of the FIR who was admittedly a resident

of different village (said to be at a distance of 10 kilometers) from the place

of  occurrence,  the  prosecution  had  not  explained  as  to  why he  was  not

examined.  If he was present in the village it was expected that he also had

witnessed the occurrence, as his son was said to be an eye-witness.  It is

difficult to believe that in a case of this nature the investigation did not start

immediately. Inquest report, preparation of seizure memo etc. which were to

be carried routinely, and as such there was no reason as to why they were

not brought on record.  

10

14. While examining the original  records of  the case, we have noticed

that some interpolations have made in the records maintained at the police

station.   The  High  Court,  in  our  opinion,  committed  a  serious  error  in

drawing  an  inference  that  appellant  had  rightly  been  held  guilty  for

commission of offence of murder of Ram Rakshpal as animosity between

the parties was proved.  It failed to notice that there is nothing on record to

show  that  the  appellant  had  been  bearing  any  animosity  against  the

deceased.  On the other hand, other accused were having animosity towards

the deceased, Mewa Ram and his family.   

Furthermore,  the  High  Court  did  not  pose  unto  itself  the  correct

question, namely, the time of lodging the FIR, i.e., whether it had in fact

been lodged at 4.45 a.m. or 4.45 p.m..  If it was lodged at 4.45 p.m., the

entire edifice of the prosecution case would fall to the ground.   

15. Delay in lodging the First Information Report has a great importance

in a case of this nature.  Enmity between the parties stands admitted.  The

prosecution case proceeded on the basis that immediately after occurrence

and after shifting the dead body under a shed, the informant got the First

Information  Report  scribed  by  Ganga  Sahai  and  immediately  thereafter

proceeded on foot to the Police Station.  If this part of the story is correct,

the prosecution’s case would not be subject to much doubt.  But if the scribe

11

of the First Information Report was residing in a separate village which is

10 kms. away from the place of occurrence, and it was at that place the FIR

was  scribed  whereafter  PW1  arrived  at  the  Police  Station,  it  would

impossible for him to reach by 4.30 in the morning.  The prosecution did not

examine the scribe of  the First  Information  Report  although his  son  has

been examined as an eye-witness.  If he was residing at the relevant time in

the village where the incident had taken place, it was expected that either he

had  witnessed  the  occurrence  or  had  reached  the  place  of  occurrence

immediately after the accused fled away.  The prosecution, therefore, should

have made attempts to clarify this anomaly.

Indisputably,  there  exists  a  discrepancy  as  regards  timing  of  the

lodging of  the First  Information  Report.   P.W.3,  Head  Constable  Hriday

Narain Shukla, testified that it was lodged at 4.45 a.m.  Records, however,

show otherwise. In the FIR, it is shown to have been lodged at 4.45 p.m.  As

noticed  hereinbefore,  there  are  some interpolations  but  according  to  the

Investigating Officer, he recorded the First Information Report at 9.30 p.m.

on 16.8.1979.

16. Moreover,  if  the  First  Information  Report  was  lodged  early  in  the

morning, there was absolutely no reason as to why the investigation did not

start  immediately thereafter.   If Head Constable  Hriday Narain Shukla  is

12

correct that the copies of the First Information Report had been sent to all

concerned including the court, there was absolutely no reason as to why the

same would reach the court on the next date.  We also fail to comprehend as

to why the dead body was sent for post mortem only on 17th instead of 15th

itself.  The seizure memo does not contain any date.  The original inquest

report is not on record.   

17. Furthermore,  except  the  appellant  all  other  accused  have  been

acquitted.  The High Court, therefore, did not rely upon the prosecution case

in  its  entirety.   While  doing  so,  unfortunately,  the  High  Court  did  not

consider  these  vital  aspects  of  the  matter  which  were  crucial  for

determination of the issue.

18. For the aforementioned reasons, the impugned judgment of the High

Court  cannot be sustained and it  is  set  aside accordingly.  The appeal  is

allowed.  The Appellant who is in custody is directed to be set at liberty

unless wanted in connection with any other case.  

……………….…..………….J. [S.B. Sinha]

..………………..……………J. [Cyriac Joseph]

New Delhi; December 12, 2008

13