Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO 1059 OF 2005

Ram Bharosey ... Appellants

Versus

State of U.P. ...Respondents

J U D G M E N T

J.M. PANCHAL, J.

The  instant  appeal  by  Special  Leave  is  

directed  against  Judgment  dated  August  17,  2004  

rendered by Division Bench High Court of Judicature at  

Allahabad in Criminal Appeal No. 828 of 1981 by which  

the conviction of the appellant under Section 302 IPC  

and  sentence  of  life  imprisonment  imposed  by  the

learned III Additional Sessions Judge, Agra in S.T. No.  

120 of 1980 is confirmed.

2. The facts emerging from the record of the case are  

as under:-

The first informant i.e. Bhure Lal had gone to  

Shamsabad, Agra (U.P.)  on December 30, 1979 at the  

Filter Centre of one Ravi Pandit to take diesel.  He was  

accompanied by his son Puran Singh and two residents  

of his own village namely Rajendra and Pohan Singh.  

Only  the  son  of  the  first  informant  got  two  cans  of  

diesel.  The first informant with his son and others was  

returning home at about 3.00 to 3.15 P.M.  When he  

was at a distance of 40 to 50 steps from Ram Khera Toll  

Naka,  he  was  accosted  by  (1)  Ram  Bharose  (the  

appellant  herein),  (2)  Jagge,  (3)  Munna  and  (4)  

Brijendra.  On spotting Puran Singh, the accused told  

that Puran should not be permitted to return alive.  The  

appellant  and  Jagge  had  Tamanchas  with  them.  

Accused  Jagge  told  Puran  Singh  that  he  would  take  

revenge for the death of his father and was free to flee  

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anywhere. Seeing danger to his life, Puran Singh started  

running for his life, leaving his bicycle and shoes.  The  

appellant and Jagge fired shots at him by Katta but no  

bullet  hit  him.   Puran  Singh  was  running  towards  

village  and when he  attempted to  take  shelter  in  the  

house  of  Karua,  he  found  that  the  said  house  was  

closed.   Therefore,  he  started  running  by  the  side  of  

Mango tree.   Both the appellant and Jagge who were  

closely following him fired shots at him but the bullets  

hit  the Mango tree.   When Puran Singh was running  

towards  Filter  Centre  after  crossing  the  road,  the  

appellant  and Jagge as well  as  Brijendra and Munna  

surrounded  him  near  Shisham  tree.   Brijendra  and  

Munna caught his hands after which the appellant fired  

a shot at him from his Tamancha which hit his chest.  

On receiving bullet injury Puran fell on the ground and  

died  on  the  spot  within  three  to  four  minutes.   The  

accused  persons  had  thereafter  fled  towards  Jarolli.  

The complainant and his colleagues could not chase the  

accused as accused were having Tamanchas.  The first  

informant,  i.e.,  Bhure  Lal  met  Kaptan  Singh  who  

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reduced the FIR into writing  and obtained his thumb  

impression  thereon.   The  complaint  so  prepared  was  

presented  before  the  Officer  of  Shamsabad  Police  

Station.  After registering the complaint, Sub-Inspector  

Mahendra  Nath  visited  the  place  of  occurrence  with  

Poohan  Singh.   The  Investigating  Officer  recorded  

statements  of  those  persons  who  were  found  to  be  

conversant with the facts of the case.  He held inquest  

on  the  dead  body  of  the  deceased  and  made  

arrangements  for  sending  dead  body  for  post-mortem  

examination with all the documents through Constable  

Ranvir Singh and Shailendra Singh.   On the basis of  

statements made by the first informant Bhure Lal, the  

Investigating Officer prepared map of scene of offence.  

From the  clothes of  the deceased,  he seized currency  

notes worth Rs. 11/- which were smeared with blood as  

well  as  permit  of  diesel  which  was  obtained  by  the  

deceased.  The Investigating Officer also recovered four  

khokha karatoosh and 12 Bore Gun from the spot.  On  

completion of  investigation  and receipt  of  report  from  

Forensic  Science  Laboratory,  the  four  accused  were  

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charge-sheeted  in  the  Court  of  Learned  Judicial  

Magistrate First Class having jurisdiction in the matter  

for commission of offence punishable under Section 302  

read  with  Section  34  of  Indian  Penal  Code.   As  the  

offence punishable under Section 302 IPC is exclusively  

triable by Court of Sessions, the case was committed by  

the Learned Magistrate to the Sessions Court for trial.   

3. The  Learned  Judge  framed  charge  against  the  

appellant  under  Section  302  IPC  and  against  other  

accused under Section 302 read with Section 34 IPC.  

The charge was read over and explained to the appellant  

and others.  They pleaded not guilty to the same and  

claimed to be tried.   Therefore,  prosecution examined  

several witnesses and produced documents to prove its  

case against the appellant and others.

4. On  completion  of  recording  of  evidence  of  

prosecution  witnesses,  the  Learned  Judge  

explained to the appellant and other accused the  

circumstances  appearing  against  them  in  the  

evidence  of  prosecution  witnesses  and  recorded  

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their  further  statements  as  required  by  Section  

313 of the Code of Criminal Procedure 1973.  In  

the  further  statements,  the  appellant  and others  

denied the prosecution case.  Three witnesses, i.e.,  

(1) Sirajuddin, who was a Clerk, Municipal Board,  

Shamsabad as D.W. 1, (2) Rohatan Singh, as D.W.  

2 and (3) Daya Shankar, as D.W. 3, were examined  

by  the  accused  in  support  of  their  defence  that  

they were innocent.

5. After  considering  the  evidence  adduced  by  the  

prosecution  and  defence  as  well  as  hearing  the  

Learned  Counsel  for  the  parties  the  Trial  Court  

held that it was proved beyond reasonable doubt  

that deceased Puran Singh died a homicidal death.  

The  Learned  Judge  found  that  evidence  of  first  

informant  who  was  father  of  the  deceased  was  

trust worthy and reliable.  The Learned Judge held  

that the FIR was not anti-timed and was promptly  

filed  in  which  the  appellant  and  Jagge  were  

identified  by  their  names  while  the  two  other  

accused  were  described  by  their  relationship.  

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According  to  the  Learned  Judge  motive  for  

commission of the crime in question was proved by  

the prosecution which was that Hukam Singh who  

was father of accused Jagge and Munna was killed  

in  1976  for  which  deceased  Puran  Singh  was  

prosecuted but acquitted and therefore in order to  

take  revenge  of  death  of  father  of  Jagge  and  

Munna, the deceased was murdered.  The Learned  

Judge  further  held  that  it  was  proved  beyond  

reasonable doubt that death of the deceased was  

caused  due  to  the  shot  fired  by  the  appellant  

which  act  was  done  by  him  in  furtherance  of  

common  intention  of  all  the  accused.  Therefore,  

the Learned Judge convicted the appellant under  

Section 302 IPC and other accused under Section  

302  read  with  Section  34  IPC  and  imposed  

sentence of life imprisonment on them.

6. Feeling  aggrieved,  the  appellant  and  others  

preferred Criminal Appeal No. 828 of 1981 before  

the High Court of  Judicature at Allahabad.  The  

Division  Bench of  the  Allahabad  High  Court,  by  

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Judgment dated August 17, 2004, has confirmed  

conviction and sentence imposed on the appellant  

but set aside the conviction and sentence imposed  

on three other accused.  Therefore, the appellant  

has approached this Court.

7. This Court has heard the Learned Counsel for the  

parties at length and in great detail.  This Court  

has  taken  into  consideration  the  record  of  the  

case.   The  contention  advanced  by  the  Learned  

Counsel  for  the  appellant  that  High  Court  has  

failed to analyse, assess and discuss each piece of  

evidence carefully on its merits before reaching its  

conclusion and therefore the appellant should be  

acquitted, has no substance.  It is true that while  

deciding a Criminal Appeal filed under Section 374  

of the Code of Criminal Procedure, 1973, the High  

Court  must  go  into  all  the  details  of  oral  and  

documentary  evidence  adduced  in  the  case  and  

conclusions should be drawn on the basis thereof.  

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There is no manner of doubt that the High Court  

should discuss oral and documentary evidence on  

record  to  indicate  that  points  argued  were  

considered.  However, the Judgment impugned in  

the appeal indicates the conviction of the appellant  

is confirmed after careful analysis, assessment and  

discussion of relevant piece of evidence on record.  

After noticing that prosecution side had presented  

8  witnesses  whereas  the  defence  had  produced  

three  witnesses,  the  High  Court  has  discussed  

evidence  of  relevant  witnesses.   The  Judgment  

rendered by the High Court further makes it very  

clear  that  Mr.  P.N.Mishra,  Learned  Advocate  for  

the appellant and others had raised three points  

for  consideration  of  High  Court  which  were  (1)  

accused persons have been involved falsely due to  

enmity, (2) only one injury was found on the dead  

body of the deceased and (3) no body could have  

caught/held the deceased when he was being fired  

from close range.  All the three points urged have  

been effectively  discussed  and dealt  with  by  the  

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High Court.  In fact, the arguments Nos. 2 and 3  

appealed to the High Court and therefore the three  

accused  who  were  convicted  under  Section  302  

with the aid of Section 34 IPC have been acquitted.  

The acquittal of the three accused itself indicates  

application  of  mind  by  the  High  Court  to  the  

evidence on record.  It is experience of one and all  

that  in  the  memorandum  of  appeal  or  revision,  

several grounds are taken/pleaded but at the time  

of  the  arguments  the  learned  advocate  would  

confine himself to few points which he considers to  

be  best  and  press  only  those  points  to  be  

considered by the Court.  It is not the case of the  

appellant that a particular point was argued but is  

not  dealt  with  by  the  High  Court.   In  the  

memorandum  of  Special  Leave  Petition  no  

grievance  is  made  by  the  appellant  that  certain  

points were urged but were not considered by the  

High  Court.  As  the  Learned  Advocate  for  the  

appellant and others had emphasized three points  

before the High Court, the High Court was justified  

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in considering those points and not adverting to all  

the points which were raised in the memorandum  

of  appeal.     This  is  not a case where the  High  

Court has confirmed conviction of the appellant by  

an  indifferent  process  of  rejecting  the  defence  

evidence on a uniform assumption that the defence  

evidence is always false.  This is not one of those  

cases where the High Court  has simply affirmed  

the findings of  the Trial  Court  without recording  

reasons.  On appreciation of evidence adduced by  

the  parties,  the  High  Court  has  drawn  its  own  

conclusions.   This  is  not  one  of  those  cases  

wherein High Court  has proceeded to  dispose  of  

the  appeal  of  the  appellant  without  appraisal  of  

evidence.   Therefore, it is wrong to contend that  

High  Court  having  failed  to  analyse,  assess  and  

discuss  each  piece  of  evidence  on  its  merits  

carefully  before  reaching  its  conclusion,  the  

Judgment impugned should be set aside.  Except  

mentioning  that  each  piece  of  evidence  was  not  

carefully  analysed,  assessed  and  discussed,  the  

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Learned Counsel for the appellant could not point  

out  to  this  Court  as  to  which  evidence  was  not  

analyseed,  assessed  or  discussed  by  the  High  

Court.   Further,  this  Court  had  permitted  the  

Learned  Counsel  for  the  appellant  to  urge  those  

points  before  this  Court  which according to him  

were  relevant  but  not  considered  by  the  High  

Court.   Thereupon,  the  learned  counsel  has  

advanced  three  contentions  for  consideration  of  

this Court, which are considered by the Court and  

dealt  with.   Thus,  there  is  no  merit  in  the  

contention  that  the  High  Court  has  failed  to  

analyse, assess and discuss each piece of evidence  

and, therefore, the same is rejected.

8. The plea that prosecution having failed to adduce  

evidence  to  establish  that  the  accused  had  

knowledge that deceased Puran Singh was to come  

to  the  petrol  pump  at  the  appointed  time  and  

therefore the conviction of the appellant should be  

set aside, has no substance.  The prosecution in  

this case never approached the Court with a case  

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that the accused had pre-meditated the murder of  

the deceased after hatching a conspiracy.  Bhure  

Lal  who  is  first  informant  and  father  of  the  

deceased  has  stated  in  paragraph  3  of  his  

testimony  that  when  he  along  with  his  son and  

others  came  near  the  octroi  barrier,  they  were  

accosted by the accused who were standing there.  

The simple case of  the prosecution is that when  

Bhure  Lal  and  others  reached  near  the  octori  

barrier, they saw the four accused standing there  

and the accused challenged Puran and fired shots  

at  him.   While  proving  this  case,  it  was  not  

obligatory  at  all  for  the  prosecution  to  adduce  

evidence  to  establish  that  the  accused  had  

knowledge  that  deceased  Puran  was  to  come  to  

petrol pump with his father at a particular time.  It  

is well settled that no direct evidence of knowledge  

on the part of an accused that he knew that the  

deceased was to come at a particular place can be  

led in a criminal trial.  It is only from the proved  

circumstances of a particular case that the Court  

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would attribute such a knowledge to an accused.  

It may be that the accused persons had come to  

Shamsabad  in  connection  with  their  work  and  

when  they  saw  their  target,  they  decided  to  do  

away  with  him.   In  this  case  the  case  of  the  

prosecution is  that  out  of  the  four,  two accused  

had fired arms and had used the same to murder  

the deceased.  To prove this case, direct evidence  

has been tendered by the prosecution.  Therefore,  

so  called  failure  of  the  prosecution  to  adduce  

evidence to establish that accused had knowledge  

that the deceased was to come to the petrol pump  

at the specified time, is of no consequence.

9. The argument that only interested witnesses were  

examined  and  no  independent  witness  was  

examined  to  prove  the  prosecution  case  and  

therefore  the  case  of  the  prosecution  should  be  

disbelieved is  devoid of  merits.   Neither  the first  

informant Bhure Lal who is examined as P.W.1 nor  

eye  witness  Poohan  Singh  examined  as  P.W.3  

could be branded as an interested witness.  Merely  

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because a witness is close relative of the deceased  

he  does  not  become  an  interested  witness.  

Interested  witness  is  one  who  is  interested  in  

securing conviction of a person out of vengeance or  

enmity  or  due  to  disputes  relating  to  the  

properties.  The facts of the case do not show that  

the first informant who is father of the deceased  

had any dispute with any of the accused including  

the  appellant.   His  simple  case  is  that  Hukam  

Singh who is father of accused Jagge and Munna  

was  murdered  for  which  his  deceased  son  was  

prosecuted but acquitted and therefore in order to  

take revenge, the deceased was done to death.  The  

cross examination of the material witnesses makes  

it very clear that the son of the first informant was  

prosecuted  for  murder  of  Hukam  Singh  but  

acquitted.   This  fact  would  not  show  in  any  

manner that the first informant was interested in  

securing conviction of the appellant and therefore  

he had wrongly deposed on oath before the Court  

that  his  son  died  due  to  the  shot  fired  by  the  

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appellant.   Even if  it  is assumed for the sake of  

argument that the witness examined in this case  

are close relatives of the deceased and, therefore,  

should  be  regarded  as  interested  witnesses,  the  

law  relating  to  appreciation  of  evidence  of  an  

interested  witness  is  well  settled,  according  to  

which the version of an interested witness cannot  

be  thrown over  board  but  has  to  be  scrutinized  

carefully and critically before accepting the same.  

This Court finds that the Trial Court and the High  

Court had subjected the evidence of witness Bhure  

Lal and witness Pooran Singh to careful scrutiny  

before accepting the same.  Therefore, on the facts  

and in the circumstances of the case this Court is  

of the opinion that neither the Trial Court nor the  

High Court committed error in placing reliance on  

the testimony of first informant who is father of the  

deceased and P.W.4.

10. The argument that the accused in the instant case  

were not known to the witnesses examined in the  

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case  and  in  the  absence  of  holding  of  Test  

Identification  Parade  benefit  of  doubt  should  be  

given to the appellant as his identification as one  

of  the  accused  is  not  established  by  the  

prosecution  satisfactorily,  is  merely  stated  to  be  

rejected.  As far as the appellant is concerned, he  

is named by the first informant in the FIR itself.  

The first informant knew very well that his son was  

prosecuted  for  the  murder  of  father  of  accused  

Jagge and Munna.  During cross-examination,  it  

was never suggested to the first informant that the  

appellant or for that purpose any of the accused  

was not known to him.  The evidence of the first  

informant makes it clear beyond pale of doubt that  

he  was  knowing  the  appellant  and  three  other  

accused prior  to the  occurrence  in question  and  

named  the  appellant  and  another  in  the  FIR  

whereas  description  of  two  other  accused  was  

given in the FIR.  His evidence further shows that  

his  relatives  are  living  in  Inayatpur  and  he  was  

visiting his relatives often.  This assertion made by  

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the  first  informant  could  not  be  demolished  by  

defence during his cross examination.  Once this  

assertion is believed to be true, it becomes at once  

clear that he would know the appellant and others.  

The evidence of Investigating Officer indicates that  

after reading FIR he did not feel that either witness  

Bhure  Lal  or  witness  Poohan  Singh  was  not  

knowing the  accused persons by their  faces and  

names and, therefore, it was necessary to hold test  

identification  parade.   Further,  it  could  not  be  

satisfactorily  established by the defence that  the  

appellant  or  any  of  the  accused  had  demanded  

holding of identification parade and that the said  

prayer  was  either  rejected  by  the  Investigating  

Officer or the Learned Magistrate.  On the facts of  

the case, this Court is of the firm opinion that the  

identity of the appellant is not in dispute at all and  

he is not entitled to any benefit on the ground that  

he was not identified by the witnesses.   

11. Thus the prosecution case that the appellant fired  

a  shot  from  tamancha  at  the  deceased  which  

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caused  his  death  is  satisfactorily  established.  

Therefore,  conviction  of  the  appellant  under  

Section 302 cannot be regarded as erroneous or  

illegal so as to warrant interference by this Court  

in the instant appeal.  The appeal has no merits  

and  therefore  deserves  to  be  dismissed.  

Accordingly, the appeal is dismissed.  

…………………………J.                 [B. Sudershan Reddy]

…………………………J.                                                     [J.M. Panchal]

New Delhi; November 17, 2009.

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