REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICITON

CRIMINAL APPEAL NO. 1339  OF 2005

Ram Narayan   …Appellant

Versus

State of U.P.  …Respondent

JUDGMENT

Dr. ARIJIT PASAYAT, J.

1. Challenge 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

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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.

I.P.C. 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.

3. The 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

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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

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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

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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.

Investigation was 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

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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.  

Thirteen  witnesses  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 acquittal.

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.  

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4. Learned  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.  

5. Learned  counsel  for  the  respondent  -State  on  the  other  hand

supported the judgment of the High Court.

6. The  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.  

7. The 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

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about half an hour or so in all even when the P.S. was 1½  k.m. far from the place of occurrence.

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 very fashion.

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  ante timing.

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.

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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 incident.  

8. 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 ½  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.

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9. The  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 speculation.

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.  

10. The third aspect related to the presence of source of light. The trial

court noted as follows:

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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.  

11. On 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 trial.  

12. One 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.

The articles recovered from the scene of the occurrence were not sent to the police station even next day of occurrence

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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.

13. So  far  as  the  analysis  of  the  evidence  is  concerned  the  trial  court

referred to various aspects:  

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.

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Nand 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.

14. The  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.  

15. The appeal is without merit and is dismissed.        

………………………………….J. (Dr. ARIJIT PASAYAT)

………………………………….J.

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(ASOK KUMAR GANGULY)

New Delhi, April 22, 2009

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