RAM NARESH v.

STATE OF U.P. (Criminal Appeal No. 231 of 2004)

SEPTEMBER 9, 2010

[Harjit Singh Bedi and Chandramauli Kr. Prasad, JJ.] 2010(11) SCR 433

The following Order of the Court was delivered

O R D E R

1. This appeal is directed against the judgment and order of the  

High Court of Judicature at Allahabad whereby the appellant stands  

convicted for an offence punishable under Section 307 of the Indian  

Penal Code and sentenced to rigorous imprisonment for five years.

2. The facts of the case are as under:

2.1 On 11th August, 1978, as Ram Vilas PW 1, and his brother  

Shiv Vilas were returning home after visiting the temple about half a  

kilometre away from the village, they were waylaid by the appellant  

Ram Naresh and his  father  Jagannath  (since expired).  Jagannath  

was carrying  a  country  made revolver  whereas  the appellant  was  

armed with a single barrel shot gun. Jaganath exhorted the appellant  

that as Shiv Vilas was always coming in their way he should be killed.  

The appellant thereupon fired one shot at Ram Vilas which hit him on  

the head. The firing also attracted P.Ws2 and 3 to the spot. The next  

morning Ram Vilas along with the injured Shiv Vilas went to Police  

Station,  Makhi  and  a  First  Information  Report  was  lodged  for  an  

offence punishale under Sections 307/34 IPC. On the completion of  

the investigation the accused were charged for the above offences.  

The trial  court  and the High Court have relied on the evidence of  

Ram  Vilas  P.W.  1  and  Lalu  P.W.  3  as  eye  witnesses  of  the  

occurrence, Shiv Vilas, in the meanwhile, having been murdered in  

some other incident.

3.  Before  the  trial  court  as  well  the  High  Court,  the  primary  

argument  made on behalf  of  the  accused  was  that  there  was  an  

inordinate and unexplained delay in the lodging of the FIR, that the  

evidence of the eye witnesses who were closely related to the injured

was discrepant in material particulars, and that the medical evidence  

did not support the ocular evidence. These submissions have been  

rejected  by  both  the  courts  below.  Before  us,  today,  Mr.  Anurag  

Kishore,  the  learned  counsel  for  the  appellant  has  reiterated  the  

same arguments. We find from a reading of the evidence that there is  

no substantial delay in the lodging of the FIR. The incident happened  

in a village about  9 kms.  away from the police  station late  in  the  

evening and it would have been difficult for the complainant living in  

rustic and backward area to rush to the police station immediately.  

We also find no reason to disregard the evidence of Ram Vilas and  

Lalu, PWs. Admittedly,  Ram Vilas was a brother of Shiv Vilas, the  

injured and Lalu was a close relative and also a party man. It must  

also be borne in mind that the incident happened in the year 1978  

and  the  evidence  was  recorded  in  the  year  1986.  Some  

discrepancies are therefore bound to appear in the ocular evidence  

as memory fades with the passage of time.

4. We have also gone through the evidence of Dr. J.N. Bajpai,  

P.W. 5. He deposed that from a look at the injury caused to Shiv  

Vilas it could not be said with certainity that it was a fire arm injury. In  

the light of the ocular evidence, however, we find that the opinion of  

the doctor can in no way stand in the way of the prosecution. Mr.  

Kishore has also attempted to argue that as the shot had been fired  

at Shiv Vilas from a distance of four feet the entry wound would have  

blackening and charring thereon. It is true that had the shot gun been  

fired from that distance, blackening and charring would have been  

visible but the four steps (kadams) that have been referred to by Mr.  

Kishore is not four feet but about 20 feet as a kadam CRL.A. No. 231  

of 2004 5 REPORTABLE would be about four to five feet. In this view  

of  the  matter,  the  fact  that  there  was  no  blackening  or  charring  

around the wound does not in any manner help the defence.

5.  It  has  been  finally  submitted  by  Mr.  Kishore  that  as  the  

incident had happened in the year 1978 and as 32 years had passed  

on some reduction in the sentence may be considered. We find merit  

in this plea. We, accordingly, reduce the sentence of the appellant  

from five to three years.

6.  With  this  modification  in  the  sentence,  the  appeal  is  

dismissed.

7. Appellant be taken into custody forthwith to serve out the  

remaining period of his sentence.