REPORTABLE  

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1108 OF 2007  

RAMVIR & ORS.       …. Appellants

Versus

STATE OF U.P.       …. Respondent

JUDGMENT

Dr. Mukundakam Sharma, J.

1. The appellants herein are the real brothers who have been convicted  

and sentenced under Section 302 of the Indian Penal Code (in short “the  

IPC”) and sentenced to undergo life imprisonment.  The Trial Court found  

the appellant No. 1 herein, Ramvir guilty of the offence punishable under  

Section 302 of the IPC whereas the appellant Nos. 2 and 3, namely, Ranpal  

Singh  and  Chatar  Singh  respectively  were  found  guilty  of  the  offence

punishable under Section 302 IPC read with Section 34 IPC and each of  

them was sentenced to undergo life imprisonment.

2. The  First  Information  Report  (in  short  “the  FIR”)  reveals  that  on  

17.04.1978 at about 6.15 p.m. when the deceased Yashpal while going to his  

Gher was surrounded by the appellants namely Ramvir, Ranpal Singh and  

Chatar Singh near the field of Nek Ram.   After surrounding the deceased,  

Chatar Singh and Ranpal Singh embraced the deceased while Ramvir gave a  

knife  blow on the chest  of  the deceased.    The deceased cried out  upon  

which the complainant and the witnesses reached the place of occurrence.  

On seeing the complainant and the winesses, the appellants fled away from  

the place of occurrence.   Deceased Yashpal instantaneously died on account  

of the injury received.    

3. The prosecution proved the motive of the accused – appellant against  

the deceased Yashpal stating it to be a case of election rivalry inasmuch as  

election  of  the  Society  had  taken  place  in  the  village  in  which  three  

candidates  contested  the  election against  the  complainant.   The deceased  

Yashpal  took  active  part  in  the  election  and  during  the  campaign  an  

altercation had taken place between the deceased - Yashpal and the appellant  

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No. 1 Ramvir upon which Ramvir threatened to kill the deceased and since  

then the appellants were having enmity with the deceased – Yashpal.

4. The aforesaid FIR was lodged immediately at the Police Station after  

the occurrence.  As already noted the incident took place at about 6.15 p.m.  

whereas the FIR was lodged at 7.35 p.m.  

5. On receipt  of the aforesaid FIR the Police started the investigation  

during the course of which the statement of the witnesses were recorded and  

on completion of the investigation a charge sheet was submitted against all  

the accused appellants.   At the time of framing of the charge, the accused  

pleaded not guilty and claimed to be tried.

6. The  Sessions  Judge  framed  the  charge  against  appellant  -  Ramvir  

under Section 302 IPC while the other two accused, namely, Ranpal Singh  

and Chatar Singh were charged under Section 302 read with Section 34 IPC.  

During  the  trial  eight  witnesses  were  examined  including  PW-1  (Giriraj  

Singh), PW-2 (Rajpal), PW-3 (Nek Ram) and PW-4 (Deopal Singh), who  

are stated to be the eye witnesses of the occurrence.   All four of them in  

their  examination-in-chief  have  supported  the  prosecution  version  of  the  

case.  The said witnesses were also cross-examined at length by the defence.  

The  other  witnesses  examined  are  of  formal  nature.    PW-5  (Dr.  Aqil  

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Ahmed)  who  conducted  the  post  mortem  examination  of  the  deceased  

Yashpal found the following antemortem injuries:-

“Star  wound  1  ½” X 1”  (chest  cavity)  on  right  side  chest 2’ above right nipple at 12 O’ clock position.”

7. PW-6 (S.I.  Mahendra Singh) and PW-7 (S.I.  Ranvir Singh) are the  

investigating officers whereas PW-8 (Jag Mohan) is the constable who had  

taken  the  dead body  for  post  mortem examination.     The  accused  was  

examined under Section 313 of the Code fo Criminal Procedure, 1973.    

8. The  defense  also  examined  one  witness  on  his  behalf  namely  Sri  

Krishna Kumar Bhardwaj as DW-1.   The aforesaid witness was examined  

by the defense with a plea that the FIR was ante timed and for that reason  

the special report was sent late to the District Magistrate, Bulandshahr.    

9. The  learned  counsel  appearing  for  the  appellant  has  raised  many  

submissions before us.   His first submission was that the FIR is ante timed  

and that the time of incident has also been changed by the prosecution to suit  

their purpose.   It was also submitted that all the witnesses examined by the  

prosecution as eye witnesses are chance witnesses.   It was further submitted  

that the semi-digested and digested food was found in the stomach of the  

deceased which indicates that the food was taken about 3-4 hours prior to  

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time of incident and therefore, the incident must have happened at about 11  

p.m. in the night and not at 6.15 p.m. as alleged by the prosecution.  We  

have considered the aforesaid submissions.   

10. We may state here that similar submissions were also made before the  

learned Sessions Judge as also before the High Court which were considered  

and  were  found  to  be  baseless  by  both  the  courts  below.    So  far  the  

contention that the FIR is ante timed, we find no reason to accept the said  

contention.  According to the prosecution, the incident happened at about  

6.15 p.m. and the same was reported to the police at 7.35 p.m. which was  

registered and therefore there was no question of ante timing of the FIR.  

The eye-witnesses examined in the trial  cannot  be said to be the chance  

witnesses as they were the residents of the same village and at about 6.15  

p.m. these eye witnesses  were moving around,  some were going to their  

agricultural field while some were coming from their respective agricultural  

fields.   The incident had happened near a sugarcane crop which is near to  

the agricultural field. The time 6.15 p.m., being broad day light, the presence  

of  the  eyewitnesses  at  the  place  of  occurrence  is  quite  natural.   The  

witnesses being the residents of the locality, their presence at the place of  

occurrence could not be considered unnatural.  They had no cause to give  

false evidence. Accordingly, their testimonies cannot be discarded. So far as  

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stomach  of  the  deceased  containing  semi-digested  and  digested  food  is  

concerned,  no  suggestion  was  put  by  the  defense  to  prove  or  elicit  the  

information  regarding  the  exact  time  of  taking  the  food  by  deceased  

Yashpal.   Even if it is assumed that the food was taken 3-4 hours prior to  

the time of incident, it would be somewhere around 2-3 p.m., when also food  

could have been taken by the deceased.    The defense put up by all the three  

accused that they were not present and they were present elsewhere is found  

to be baseless.  We find no reason to take a different view from what was  

taken by both the trial court as well as the High Court.    

11. The plea of the defense that the time of occurrence was solely to suit  

the purpose and interest of the prosecution could also have not been proved  

by leading any evidence to establish that the incident had happened during  

night.   Therefore, we find no reason to disbelieve the facts put up by the  

prosecution that the incident had happened at about 6.15 p.m. at the place of  

occurrence and deceased Yashpal had died out of a knife blow allegedly  

being given by accused No. 1 Ramvir and the said knife blow itself caused  

his instantaneous death and he died at the spot before he could be taken to  

any hospital.   The dimension and the nature of the injury also speaks for  

itself.

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12. It was next submitted by the counsel appearing for the appellants that  

presence of appellant Nos. 2 and 3 should have been held to be doubtful.

13. It was submitted by the prosecution that appellant nos. 2 and 3 caught  

hold of the deceased Yashpal whereupon appellant No. 1 gave a knife blow  

to the deceased Yashpal which proved to be fatal.  We have analysed the  

said  evidence  very  carefully  and very  minutely  and also  appreciated  the  

contention raised on behalf of the counsel for appellant Nos. 2 and 3.

14.  The evidence adduced to establish the guilt of appellant Nos. 2 and 3  

are that appellant No. 1 had come to the place of occurrence alongwith a  

knife in his hand and he came out of nearby bushes whereas the other two  

accused came from another place.   They allegedly came out of the field,  

caught hold of the deceased and embraced him.   If the appellant Nos. 2 and  

3 were embracing the deceased, a knife blow could not have been given in  

that manner by appellant No. 1 on the chest of the deceased.   It is not stated  

by the prosecution that the said two accused Nos. 2 and 3 were embracing  

him from behind.  Nature of the evidence adduced and role ascribed to them  

appear to us to be highly improbable.  They are, therefore, entitled to benefit  

of doubt.  The aforesaid attack with the help of the knife pierced through the  

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lung and went through the chest.   All the three appellants are the brothers  

and apparently there was some rivalry between the two groups in the village.

15. Considering the facts and circumstances of the case, we find that the  

story put up by the prosecution regarding the role of the appellant Nos. 2 and  

3 are exaggerated and improbable.       There is no allegation that these two  

persons i. e. appellant No. 2 and 3 were carrying any weapon in their hands.  

It  is  also proved that  they were  coming to the place of  occurrence from  

another direction.

16. Therefore, the role ascribed to the appellant Nos. 2 and 3 are found to  

be unbelievable.   Their presence at the place of occurrence is also doubtful  

and therefore we extend benefit of doubt so far as appellant Nos. 2 and 3 are  

concerned.  

17. However, the fact that appellant No. 1 had given knife blow which has  

pierced through the chest and has also pierced the lung, the gravity of the  

blow and the dimension of the injury clearly proves that appellant No.1 had  

the intention and knowledge of killing the deceased Yashpal, and therefore,  

the appellant No. 1 used knife at the most vital part of the body affecting  

chest  and lung with the knowledge that  such injury will  definitely  cause  

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death to the deceased Yashpal in the ordinary course of nature.   In that view  

of  the  matter  we are  of  the  considered  opinion that  it  is  a  clear  case  of  

Section 302, IPC.   The conviction and sentence awarded to the appellant  

No. 1 by both the trial Court as well as the High Court is affirmed.  The  

conviction and sentence with respect to appellant No. 1 is upheld.   

18. Accordingly,  the  appeal  so  far  as  appellant  No.  1  is  concerned,  is  

dismissed.    

19. However, the appeal in respect of appellant Nos. 2 and 3 is hereby  

allowed.   The conviction and sentence of appellant No. 2 and 3 are hereby  

set aside.  They are set at liberty.  They shall be released forthwith if they are  

not wanted in any other case.  

20. The appeal is disposed of in terms of aforesaid order.

  …..………………………J.         [Dr. Mukundakam Sharma]

   .…..........………………..J.                     [Dr. B.S. Chauhan]

New Delhi, July 6, 2009

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