REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 184 OF 2005

Ramesh & Anr. …. Appellants

Versus

State of U.P. …. Respondent With

CRIMINAL APPEAL NO. 364 OF 2005

Mani Ram …. Appellant

Versus

State of U.P. …. Respondent

With CRIMINAL APPEAL NO. 548 OF 2005

Ram Kumar …. Appellant

Versus

State of U.P. …. Respondent

J U D G M E N T

V.S. SIRPURKAR, J.

1. This  judgment  will  dispose  of  Criminal  Appeal  No.  184  of  2005,  

Criminal Appeal No. 364 of 2005 and Criminal Appeal No. 548 of 2005.  

First mentioned Appeal has been filed by Ramesh, original accused No. 2  

(A-2)  and  Ram  Nath,  original  accused  No.  5  (A-5),  while  the  second  

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mentioned Appeal has been filed by Mani Ram, original accused No. 3 (A-

3).   The last  mentioned Appeal has been filed by Ram Kumar,  original  

accused No. 1 (A-1).  All of them were convicted for the offences under  

Section 302 read with Section 149, 147 and 148 of the Indian Penal Code  

(hereinafter referred to as “IPC” for short) by the IIIrd Additional Sessions  

Judge,  Unnao.   They were  tried alongwith  two other  accused persons,  

namely, Swami Nath @ Swami Dayal, original accused No. 4 (A-4) and  

Ram Naresh,  original  accused  No.  6  (A-6).   Even  these  two  accused  

persons A-4 and A-6 were also convicted alongwith the appellants herein,  

however, it is reported that Swami Nath @ Swami Dayal (A-4) has not filed  

any appeal, while Ram Naresh (A-6) is already dead.  That leaves us with  

only the four accused persons.

2. All the six accused persons originally faced a charge under Section  

302 IPC.  Appellants Ram Kumar (A-1), Mani Ram (A-3) and Swami Dayal  

@ Swami Nath (A-4) were tried substantively for the offence under Section  

302 IPC on the  allegation  that  they had committed murder  of  one Raj  

Kumar (deceased) on 24.10.1978 at about 5 p.m. near a well located to  

the south-east  of  the house of  Pancham in Village Karia Khera,  Police  

Station Kotwali, District Unnao.  They were also alternatively charged with  

other accused for the offence under Section 302 read with Section 149  

IPC.  Some accused persons were also tried under Section 148 IPC and  

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two of them, namely, A-5 and A-6 were tried for the offence under Section  

147 IPC.   

3. The deceased Raj Kumar, who was about 24 years old, was the real  

brother  of  Prithvi  Raj  (PW-1),  the  complainant.   They  had  two  other  

brothers and five sisters.  One of the sister is Daya Wati (PW-5), aged  

about 17 years at the time of the incident.  Ram Kumar (A-1) and Ram  

Nath (A-5) are the real brothers, while Ramesh (A-2) is the son of their  

cousin.  Excepting Mani Ram (A-3), all the accused persons were from a  

single family.  There was some enmity between the family of the accused  

and the family of the deceased.  There were number of murders.  Ram  

Raj, who was one of the brothers of Prithvi Raj and Raj Kumar (deceased)  

was murdered on 12.6.1977.  In that murder case, Prithvi Raj (PW-1) had  

named 7 assailants,  out  of  whom one was Ram Naresh (A-6).   In  that  

case, deceased Raj Kumar was a witness.  In the murder case of Ram  

Raj, the prosecution evidence was to begin from 6.11.1978, i.e., about 12  

days after the incident, which took place on 24.10.1978.  In short, there is  

a  strong  motive  of  enmity  in  between  the  accused  party  and  the  

complainant party.   

4. It so happened that on the fateful day, i.e., 24.10.1978, Raj Kumar  

(deceased) went to his tubewell, which is at about 100-125 paces from his  

house and after watering the field, he came back home at about 4.30 p.m.,  

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as  there  was  no  electric  current  available.   He  again  started  for  his  

tubewell  and  his  sister  Daya  Wati  (PW-5)  and  his  mother  and  wife  of  

Prithvi Raj, i.e., his sister-in-law also followed him.  When Prithvi Raj came  

out of his house, Prahlad (PW-4) met him.  Prahlad had come to the village  

to purchase the seeds.  Two other persons also met him there and they  

also started towards the tubewell.   The moment, they reached near the  

Neem  tree  situated  at  a  distance  of  15  paces  from  the  house  of  the  

deceased, all the accused accosted him, surrounded him and dragged him  

by pulling near the well upto a distance of 10-15 paces.  Ram Naresh (A-6)  

then exhorted that Raj Kumar (deceased) should be murdered in the same  

manner in which his brother Ram Raj was murdered, so that Raj Kumar  

may not appear as a witness.  Thereupon, Mani Ram (A-3) fired a shot  

from his country made pistol, which was followed by a second shot of fire  

from the country made pistol of Swami Nath (A-4).  Ramesh (A-2) put a  

cartridge into a country made pistol and gave it to Ram Kumar (A-1), who  

also fired a shot at Raj Kumar, due to which Raj Kumar died on the spot.  

All  the accused persons then ran away.   Because of the injuries, blood  

started  coming out  and the  clothes  of  Raj  Kumar  were  soaked.   They  

included, in all, 7 Exhibits.  Within about 15 minutes, at about 5.15 p.m.,  

Prithvi  Raj  (PW-1)  came back  on his  cycle  from Village  Dewara  Kala,  

where he had gone for doing his duty as Panchayat Sewak.  He found the  

dead body of Raj Kumar.  He talked to his wife and mother and his sister  

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Daya  Wati  (PW-5).   Other  witnesses,  namely,  Prahlad  (PW-4)  and  

Rajendra  Singh  and  Surendra  (both  not  examined  by  the  prosecution)  

were also present there.  After knowing about the incident from the eye-

witnesses,  Prithvi  Raj  (PW-1)  himself  wrote  a  First  Information  Report  

(FIR)  Exhibit  Ka-1  and  went  to  Police  Station  Kotwali,  situated  at  a  

distance  of  about  10  km.  from the  place  of  the  occurrence,  where  he  

lodged it  at 6.30 p.m.  On the basis of this written report,  check report  

Exhibit Ka-3 was prepared and the further investigation started.  In the FIR,  

all the 6 accused persons were named and the whole incident was also  

narrated.   The matter was  investigated by D.P.  Tiwari,  S.I.  (PW-6) and  

after the usual investigation and recording the statements of the witnesses,  

as  also  after  holding  the  Inquest  Panchanama  and  Spot  Observation  

Panchanama, the body was sent for post-mortem.  After the completion of  

the investigation, the chargesheet came to be filed.  Dr. S.M. Tripathi (PW-

2), who had performed the autopsy, found five injuries on the body of Raj  

Kumar (deceased), three being the entry wounds and two being the exit  

wounds.  He also confirmed that all the three injuries were sufficient, in  

ordinary course of nature, to cause death.

5. Accused  persons  abjured  guilt.   Two  eye-witnesses,  namely,  

Prahlad (PW-4) and Daya Wati (PW-5) were examined by the prosecution.  

Prithvi  Raj  (PW-1) spoke about the FIR, while  Dr.  S.M. Tripathi  (PW-2)  

spoke about the medical aspect.  The only other relevant witness is D.P.  

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Tiwari,  PW-6,  who  was  the  Investigating  Officer.   The defence did  not  

prevail  and  all  the  six  accused  persons  came  to  be  convicted.   The  

accused  persons  filed  appeal  before  the  High  Court,  however,  their  

appeals  failed and that  is  how the four  accused out  of  the  original  six  

accused persons are before us, challenging their conviction.

6. Before the High Court, the criticism levelled was that the prosecution  

stood on the basis of the interested witnesses like Prahlad (PW-4) and  

Daya Wati (PW-5).  The defence severally criticized the non-examination  

of the other two witnesses, namely,  Rajendra Singh and Surendra, who  

were admittedly present and also the other two ladies, namely, Nanhakki  

and Ram Piyari, who were claimed to be present in the FIR.  It was further  

urged before the High Court that the story of the FIR having been recorded  

at 6.30 p.m. was a myth and in fact, the FIR was ante-dated.  All these  

arguments were repelled by the High Court.  The High Court came to the  

conclusion that  the evidence of  Prahlad (PW-4) and Daya Wati  (PW-5)  

were absolutely trustworthy and stood the acid test of cross-examination.  

The High Court further held that there was enough support in corroborating  

evidence, inasmuch as in the FIR itself, names of all the accused persons  

alongwith the part played by each of them was reflected.  It was also held  

by the High Court that there was no possibility of ante-dating the FIR.  The  

factum of  this  murder  was  mentioned in  the  other  FIR,  wherein  it  was  

complained that the complainants in this case have caused the murder of  

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one of the persons of the accused party and since that FIR was already  

recorded by 7.45 p.m., there was no question of ante-dating the present  

FIR.  The High Court also held that the medical evidence was enough to  

prove the guilt.  On this basis, the conviction came to be confirmed.

7. Before us, Shri Jaspal Singh, Learned Senior Counsel, appearing on  

behalf  of  the  appellants,  who  led  the  arguments  and  Shri  P.N.  Puri,  

Learned Counsel, who supported the arguments of Shri Jaspal Singh, took  

us through the whole evidence.  Ordinarily, we would have refused to go  

into  the  evidence,  however,  in  his  inevitable  style,  Shri  Jaspal  Singh  

persuaded us to see the evidence of the two eye-witnesses.  Seeing the  

evidence, we are convinced that the eye-witnesses are truthful and were  

rightly  believed  by  the  High  Court.   Shri  Jaspal  Singh  criticized  the  

evidence of these two witnesses, suggesting that the enmity between the  

parties  should  have  been  held  on  the  backdrop  before  accepting  the  

evidence of  these two witnesses.   He is quite right,  as the law on the  

subject is that evidence of the interested witness should be appreciated,  

keeping that enmity in mind.  We find that both the Courts have, in a most  

balanced  manner,  appreciated  the  evidence  of  these  two  witnesses.  

When we see the evidence, it is seen that both the witnesses have given  

the graphical description of the whole incident.   

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8. It was tried to be suggested by Shri Jaspal Singh that Prahlad (PW-

4) had no business to be in the village and his evidence is almost in the  

nature of a chance witness.  The Learned Senior Counsel wondered that if  

this witness had come to the village for purchasing the seeds, then he had  

no business to go to the house of Raj Kumar (deceased) and further to  

accompany him.  It was also suggested by the Learned Senior Counsel  

that ultimately he had never purchased the seeds, which was the object of  

his visit to the place.  The Learned Senior Counsel further urged that his  

version on the dragging of Raj Kumar by the accused persons does not  

really  tally  with  the  version  given  by  Daya  Wati  (PW-5).   We  have  

considered all these questions.  Merely because Prahlad (PW-4) was not  

from the same village, it  cannot be said that he had no business in the  

village.  It has come in the evidence clearly that the distance between the  

village of Prahlad (PW-4) and the village where the incident took place is  

hardly about 1.5 km.  Therefore, his coming to the village for purchasing  

the seeds cannot be viewed with a suspicion.  It is also not necessary that  

Prahlad (PW-4) should have straightaway gone only to the shop of the  

seeds  and  purchased  the  seeds.   After  all,  Prahlad  (PW-4)  knew  the  

deceased Raj Kumar and in fact, Prahlad (PW-4) was cross-examined in  

that direction.  If Prahlad (PW-4) already knew deceased Raj Kumar and if  

he went just to visit him, we do not think, this by itself, would be reason to  

disbelieve his testimony.  In villages, the people do normally go to each  

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other’s house.  Again the criticism that Prahlad (PW-4) had no business to  

go and accompany Raj Kumar to his field, is also of no consequence, as  

Prahlad (PW-4) might have walked alongwith Raj Kumar hardly for 20-25  

paces.   In fact,  the distance between the house of  Raj  Kumar and his  

tubewell is hardly about 100-125 paces, which has come in the evidence.  

Therefore,  even  if  Prahlad  (PW-4)  walked  alongwith  deceased,  that  by  

itself, does not make his version suspicious in any manner.  We have seen  

the cross-examination.  The cross-examination is lacklustre and nothing  

has  been brought  in  the  same.   The  Learned  Senior  Counsel  tried  to  

compare the evidence of Prahlad (PW-4) with evidence of Daya Wati (PW-

5) and pointed out that the theory of dragging was not supported in the  

evidence of  Daya Wati  (PW-5).   We have seen the original  version (in  

Hindi), which convinces us that even Daya Wati (PW-5) has said that the  

deceased was  actually  pulled  and pushed to  the  place,  where  he  was  

actually fired upon.  Even otherwise,  ordinarily  the deceased would not  

have gone alnogwith his enemy just by walking and his being dragged or  

being pulled would be only a natural thing, which the witnesses supported.  

There is one mistake on the question of Ramesh (A-2) loading the pistol  

with cartridges and giving it to the other accused.  That was obviously a  

mistake,  which  has been explained by the  Trial  Court  as  in  the cross-

examination of Daya Wati (PW-5), it has very specifically come that it was  

Ram Kumar (A-1) who fired.  Therefore, the confusion caused was also  

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cleared.   Some  minor  contradictions  were  pointed  out  by  Shri  Jaspal  

Singh, the Learned Senior Counsel, which in our opinion, have been rightly  

disbelieved  by  the  Trial  Court  and  the  High  Court.   After  all,  the  

contradictions  were  bound to  be there and in fact,  those contradictions  

have gone to support the truthfulness of the witness.

9. Lastly,  Shri  Jaspal  Singh,  the  Learned  Senior  Counsel  for  the  

appellants pointed out that there were about 12 witnesses.  It was admitted  

by both the eye-witnesses that there were about 10-12 persons, who were  

watching  the  incident.   Learned  Senior  Counsel  severely  criticized  the  

prosecution on not collecting any evidence.  Now, it can be understood as  

to why the other witnesses were not examined.  The enmity between the  

two parties  was  known,  there  was  also  murders  and counter  murders.  

Under such circumstances, if the witnesses do not become available, it is  

not the fault of the investigating agency.  This is apart from the fact that the  

Investigating Officer was not asked about the aspect of witnesses being  

available.  We do not, therefore, find fault with the judgment of conviction  

recorded by the Sessions Judge and the High Court.

10. Reliance was placed by Shri Jaspal Singh, Learned Senior Counsel  

on the law laid down by this Court in Ram Lakhan Singh & Ors. Vs. State  

of Uttar Pradesh reported in 1977 (3) SCC 268, more particularly, on Para  

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24-31.  We do not think that the case is relevant, as we are convinced that  

on the facts of this case, the defence has no scope to stand.

11. Shri  Puri,  Learned Counsel  for  the appellants  also supported the  

argument and tried to contend before us that the evidence fell  short  of  

proof beyond the reasonable doubt.  We do not think so.   

12. For  the  reasons  given,  we  are  of  the  firm  opinion  that  the  

prosecution proved its case to the hilt  and the Trial Court and the High  

Court were right in convicting the appellants/accused.  In that view, all the  

appeals are dismissed.

………………………………..J. (V.S. Sirpurkar)

………………………………..J. (Deepak Verma)

New Delhi; August 25, 2009.  

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