Holding

The High Court’s acquittal was perverse and contrary to the weight of the evidence, and therefore the Supreme Court restored the conviction of the accused.

Summary

The case arose from a shooting at a petrol pump in Jaunpur district where two sons of the complainant were killed. The trial court convicted three accused under sections 302, 307, 323, 342 IPC and sections 27, 30 of the Arms Act, but the Allahabad High Court acquitted them. On appeal, the Supreme Court examined the consistency of eye‑witness testimony (PW‑1, PW‑2, PW‑3), the medical evidence, the recovery of firearms, and the lack of any credible claim of private defence. It held that the High Court’s acquittal was perverse, that the number of witnesses is immaterial so long as the evidence is reliable, and that the appellate court may not re‑weigh evidence except where the acquittal is manifestly unjust. Consequently, the Supreme Court set aside the acquittal and restored the trial court’s conviction.

Issues considered

The correctness of the High Court’s acquittal in view of the eye‑witness and medical evidence.
Whether an appellate court under Article 136 may re‑appreciate evidence or only intervene when an acquittal is perverse or grossly unjust.
The existence of a defence of private defence and whether it was proved.
The effect of non‑examination of other witnesses on the prosecution case.
The materiality of the delay in lodging the FIR.
The competency and independence of PW‑3 as a witness.

Legislation cited

Arms Act, 1959s. 27, s. 30
Code of Criminal Procedure, 1973s. 313, s. 378, s. 386
Constitution of Indias. 136
Indian Evidence Act, 1872s. 134
Indian Penal Code, 1860s. 302, s. 307, s. 323, s. 34, s. 341, s. 342

Subjects

murderprivate defenceevidentiary standardsArticle 136acquittaleye‑witness testimonyArms Actcriminal appeal

Judgment

[2009] 14 (ADDL.) S.C.R. 755

RAJ NARAIN SINGH A
~
v.
STATE OF U.P. & ORS.
(Criminal Appeal Nos. 891-892 of 2002)

SEPTEMBER 18, 2009
B
[DALVEER BHANDARI AND DR. MUKUNDAKAM
SHARMA, JJ.]

Penal Code, 18601 Arms Act, 1959 - ss. 302, 307, 323
, ~

and 342 rlw s. 341 ss. 27 and 30 - Prosecution under -
c
Conviction by trial court - Acquittal by High Court - On
appeal, held: Acquittal order not correct - Eye witnesses'
version is consistent and corroborates the version of FIR -
Prosecution case was corroborated by medical evidence -
D
Plea of private defence not proved - Non-examination of
- ,.., available witnesses not fatal - No particular number of
witnesses required to prove a fact - Evidence Act, 1872 - s.
134.
E'
Constitution of India, 1950 - Article 136 - Jurisdiction
under - Scope of - Held : Jurisdiction not to be exercised to
reweigh the evidence - Even if two views possible, Court not
to interfere with order of acquittal, unless the acquittal order
+. is perverse. F

Respondents-accused were prosecuted ulss. 302,
307, 323, 342 r/w s. 34 IPC and u/ss. 27 and 30 of Arms
Act. As per prosecution, the incident was a result of an
altercation between PW. 2 (relative of the deceased G
persons) and the accused persons, who were running a
j petrol pump. PW-1 (complaint), PW-2 and PW-3 were the
eye-witnesses to the incident. Firearms were recovered
755
H
)-
756 SUPREME COURT REPORTS [2009] 14 (ADDL.) S.C.R.

A from the possession of the accused. Accused No.3 had
.....
absconded. --+

The trial Court convicted all the three accused. In
appeal, the High Court acquitted the accused. Hence, the
B present appeals by the complainant and the State .
.
Allowing the appeals, the Court

HELD: 1. The scope of appeals under Article 136 of
c the Constitution is very much limited. This Court does not
~-' .
exercise its overriding powers under Article 136 to
reweigh the evidence. The court does not disturb the
concurren·t finding of facts ·reached upon proper
appreciation. Even iftwo views are reasonably possible,
D one indicating conviction and other acquittal, this Court !'

will not interfere with the order of acquittal. But this Court '"f-
will not hesitate to interfere, if the acquittal is perverse in
the sense that no reaiiiunable person would have come .,..
to that conclusion, or if the acquittal is manifestly illegal
E or grossly unjust [Para 10] [765-G-H; 766-A-B]

Chandrappa v. State of Karnataka (2007) 4 SCC 415; y

Glwrey Lal v. State of U.P., (2008) 10 SCC 450, referred to.
.+-
F 2.1. In view of the facts and circumstances of the
}-

case, the High Court clearly erred in reversing the order
of conviction recorded by the trial Court. There is nothing ,.
to doubt the correctness of the version given by PW-1 ~
(complainant). He has proved the FIR lodged by him. ..
G
There is no contradiction between the facts stated in the
FIR and in his evidence given before the trial Court, which )..
has been corroborated by the evidence of PW-2 and PW-
3. PW-1, PW-2 and PW-3 who were eye-witnesses to the
H
. RAJ NARAIN SINGH v. STATE OF U.P. & ORS. 757

occurrence have fully proved the incident and A
corroborated the statements mentioned in the FIR and
there is no inconsistency in the statements of all.the three
witnesses. There is no material contradiction in the cross-
examination and the entire facts of the FIR which has
been fully supporte.d by the statements of all the thr~e· B
aforesaid witnesses. [Paras 12, 13 and 24] [775-H; 776-
A; 768-B-C; 768-G-H]

2.2. It is not correct to say that PW-3, being an
employee of PW-1, is not independent witness an'.d C
therefore his testimony could not be relied upon. This fact
neither finds any support from the prosecution evidence
nor has been proved by any defence witness. Accuse~
had relied upon the statement of PW-3 wherein he stated
PW-1 as master for submitting that PW-3 is a servant of 0
PW-1. But a careful perusal of his statement wouht
indicate that PW-3 called PW-1 as master as PW-1 was a
teacher and therefore he was described as master. From
the said evidence, It therefore, cannot be deduced that E
PW-3 was a servant of PW-1 .. [Para 14] [768-B-C; F-G]
1

2.3. From the perusal of the post mortem report and
4. the statement of the doctor it is clearly evident that the
injuries on the deceased persons were found to be on F
the chest which is a vital part of the body and the death,
was natural as the bullet had hit them. [Para 15] [769-C-
D]

2.4. There is nothing on record which can even G
IA
remotely suggest that the act of the accused persons
was in exercise of their right of private defence. There is
no proof in support ofthe defence version that the two
deceased came there to the petrol· pump to commit
H
758 SUPREME COURT REPORTS [2009] 14 (ADDL.) S.C.R.

A robbery by hurling bomb and in the process also caused
damage to the petrol pump. The investigation, at the place -+· -
~

of occurrence soon after the incident did not reveal any
remains of bomb or recovery of any firearm. There was
no damage to petrol pump. No such suggestion was put
B by the defence to either PW-10 or PW-11, both of whom
were present at the place ofoccurr~nce at the time when
the showroom of the accused persons was searched and
weapons, cartridges and other articles were seized. [Para
17] [770-A-E] ~ .
c
2.5. There is no reason to doubt the prompt
registration of the FIR. It is not correct to say that the
natural conduct of father loosing two sons would be to
stay with the sons and weeping instead of going to the
D police station immediately to lodge an FIR. In the
'?---
circumstances of the case, it is quite clear that PW-1
could not reach upto his sons after they fell down due /'
to firing. It is also clear from the record that the two
accused had locked ?W ,2, a relative of PW-1 in their
E
custody and at that time accused No. 2 was. having a
gun. In the circumstances of the case, when both sons
of P.W. 1 fell down, his relative (PW-2) was 1in the custody ~

of the accused persons, PW-1 had indeed no other option .....
except to approach the police station. That was also
F
necessary since there was also danger to the life of PW- ~

2. [Para 18] [770-F-G; 771-A-E]

2.6. It is not correct to say that PW-1 to PW-3 are
G interested witnesses and there are some contradictions
in their statements. Though PW-1 and PW-2 are related
to each other and also with the two deceased as both
deceased were the sons of PW-1, PW-3 cannot be said
to be in any way interested with PW-1 or PW-2 nor he
H
RAJ NARAIN SINGH v. STATE OF U.P. & ORS. 759
~
. . had enmity with the accused persons. [Para 19] [771-F .. A
G]
2. 7. It is not necessary that all those persons who
~ were present at the spot must be examined by the
~
prosecution in order to prove the guilt of the accused. B
Section 1 ~4 of the Evidence Act provides that no
particular number of witnesses is required for proof of
~ -4 any fact. It is trite law that it is not the number of witnesses
but it is the quality of evidence which is required to be
taken note of by the courts for ascertaining the truth of c
the allegations made against the accused. The ghastly
acts, of the nature and gravity as the present one, when
committed in a public place may very well create a sense
of fear and shock in the minds of the witnesses and thus
D
-"" prevent them from coming forward and deposing against
the perpetrators of the crime. If the testimonies of those
witnesses, who have deposed during the trial, are
otherwise found to be reliable, trustworthy and cogent,
the said evidence cannot be disbelieved or discarded
E
merely because the prosecution has failed to examine
mot
other witnesses allegedly present on the spot. [Paras 20
and 21] [772-8-D; 774-F-H]
.
Takhaji Hiraji v. Thakore Kubersing Chamansing, (2001)
F
6 sec 145, relied on.

2.8. It is not correct to say that the story of accused
No. 1 and accused No. 2 locking the PW-2 in the
showroom is unbelievable. The facts that PW-2 was G
assaulted by the accused persons and forcibly taken to
the showroom and locked in there; that gun shot was
fired at PW1; and that when the two sons of PW-1
reached the spot, two consecutive shots were fired at
ihem which resulted in their death and thereafter H
760 SUPREME COURT REPORTS [2009] 14 (ADDL.) S.C.R.

A gunshots were fired PW 1, are clear not only from the
evidence of PW-1 but. has also been fully corroborated
by the evidence of PW-2 and PW-3. It is quite evident from
the record that a big crowd gathered at the spot Under
the circumstances of the case, it was quite natural for the
B accused persons to keep PW-2 in their custody. Making
PW-2 captive, a .fact to which PW-11, the investigating
officer was also a witness, could well protect the accused
persons from the crowd which had come to the place of
occurrence after hearing the gunshots. Making PW-2
C captive could also protect the petrol tank from being
damaged by the pressure of the agitated crowd. The
injuries were found on the body of PW-2 by the doctor
who had examined him soon after the incident. [Para 22]
D (775-A-E]

Case Law Reference:

(2003) 3 sec 454 Referred to Para 8

E c2001) 4 sec 415 Referred to Para 10

F
c2ooa) 1o sec 450

c2001 > s sec 145
Referred to

Relied on
Para 11

Para 20
-
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
Nos. 891-892 of 2002.

From the Judgment & Order dated 27 .2.2002 of the High
G Court of Judicature at Allahabad in Criminal Appeal Nos. 234
and 235 of 1996.

WITH

H Criminal Appeal Nos. 1811-12 of 2009.
RAJ NARAIN SINGH v. STATE OF U.P. & ORS. 761

U.U. Lalit, Shail Kumar Dwivedi, AAG, P.K. Jain, A.
---(
Sudhakar Diwedi, Arun Chadhaury, S.P. Singh, Prashant
---1
Choudhary, Garvesh Kabra, Shrish Kumar Misra, Vijay Kumar,
' C. Jay Raj, Venkateswara Rao Anumolu, Pankaj Kumar,
.. Prashant Choudhary for the appearing parties .
.,
I
B
The Judgment of the Court was delivered by

} ~
DR. MUKUNDAKAM SHARMA, J. 1.. Leave Granted.

2. The present Criminal Appeals have been preferred c
against the judgment and order passed by the Allahabad High
Court whereby it reversed the judgment and order of conviction
passed by the trial Court under Sections 302, 307, 323, 342
read with 34 of the Indian Penal Code (in short "the IPC") and
.... "' Sections 27 and 30 of the Anns Act. D

3: The facts leading to the filing of the present appeals,
as per the prosecution, in brief are that on 23.05.1994, i.e., a
day prior to the date of the occurrence, Sunil Sir.igh alias
Guddoo (PW-2), a resident of village Vasnari, Police Station, E
-l Kerakat, District Jaunpur came to visit the house of Raj Narain
--.. Singh (PW-1 ), complainanUappellant herein who is a resident
4- of village Pravaspur, Police Station, Mariyahun, District Jaunpur
for the 'Bidai' of his sister in connection with a marriage in PW-
F
2's family. On the fateful day, i.e., 24.05.1994 at around 8.30
a.m., PW-2 went to the petrol pump known as !he Dharamraj
Service Station, Pali owned by the accused persons for
procuring petrol for his scooter. At the petrol pump, an
altercation arose between PW-2 and Prabhakar Pandey G
(Accused No.3), and the same ended up in a fight between
them. Shortly after PW-2 had left the house of PW-1, PW-1
\
alongwith one Adya Prasad also left the house for going to the
examination centre where they were to evaluate the board
examination answer books. On their way to the said H
762 SUPREME COURT REPORTS (2009) 14 (ADDL.) S.C.R.
~
A examination centre, PW-1 and said Adya Prasad saw that PW- f
~
2 was being dragged and beaten by the accused persons. On
seeing this, PW-1 and Adya Prasad tried to intervene. At this,
r-,-
Accused No. 3 exhorted Pushkar Pandey (Accused No. 2) to
shoot the interveners, whereupon, Accused No. 2 fired a shot -·
\.

B from his double barrel gun which compelled PW-1 and his I-

companion to retreat to safety. The gunshot and the resulting
commotion attracted the attention of Rajesh and Brijesh, both
sons of PW-1, who'then emerged from the village pathway on ~ -{

their---rnotorcycle and reached the spot. Karunakar Pandey
c (Accused No. 1) and Accused No. 3 exhorted Accused No. 2
to kill both Rajesh and Brijesh. Shots fired by Accused No. 2
hit Rajesh and Brijesh, as a result of which, both fell down from
their motorcycle and died on the spot. The aforesaid incident
was witnessed by Ramjee Maurya (PW-3), Virendra Singh,
0 "f'A'
Bhola Nath Singh and several other persons. PW-2 was taken
captive by the accused persons inside the said service station
showroom. Immediately thereafter, PW-1 went to the Police
Station, !\Jlariyahun and lodged a written report at about 9.10
a.m. on the same day. On the basis of the aforesaid written
E
report, the First Information Report (in short "the FIR") was
registered by the Head Constable Jeet Bahadur Singh (PW- .,
8) and a Crime Case No. 178/1994 was registered in the
¥
presence of SSI Narendra Pratap Singh (PW-11) under
F Sections 323, 342, 307, 302 of the IPC. Thereafter, PW-11 '
proceeded to the spot of occurrence. On reaching the spot of ~
occurrence, PW-11 noticed PW 2 being kept captive by the ,__

accused Nos. 1 and 2 inside the showroom. Thereupon, he
proceeded towards the showroom and on seeing him the two
G accused tried to flee away from the place of occurrence. They
were, however, apprehended and on searching them, PW-11 ).

recovered a pistol and a gun from their possession. Accused
No.3 was found to be- absconding from the spot of occurrence.
PW-2 was then freed from the custody and sent to the police
H station along with Constable Sunil Kumar Singh for the purpose
RAJ NARAIN SINGH v. STATE OF U.P. & ORS. 763

.. )
[DR. MUKUNDAKAM SHARMA, J.J

of medical treatment. The statement of PW-1 was recorded on
the spot and that of PW-2 was recorded after he returned back
A

after undergoing medical examination. Subsequently, with the
help of PW-1 and PW-2, a site plan was prepared and four
;
empty cartridges of 12 bore were seized by the police. Dr. M.
L. Srivastava (PW-4), who had examined PW-2 on 24.05.1994 B
at 1.50 p.m. in his report, mentioned about four injuries on the

.-'
person of PW-2. Dr. C.K. Gupta (PW-7) had conducted the
post~mortem of the dead bodies of the deceased persons and
in his two reports opined that the gunshots had injured the vital
c
part of the body and that death had been caused due to shock
and hemorrhage. On the completion of the investigation, a
charge sheet was submitted. On the basis of the same, the
charges were explained to the accused who pleaded not guilty
and claimed to be tried.
; ... "r D
4. The prosecution, in order to establish the guilt of the
accused, examined several witnesses and exhibited
documents. After examining the witnesses from both sides and
upon hearing arguments advanced by the parties, the trial Court
by its judgment dated 01.02.1996 convicted all the three
E
accused. Accused No. 2 was convicted and sentenced to life
imprisonment under Section 302 IPC, ten years RI under
~
Section 307 IPC, six months RI under Section 323 read with
34 IPC, six months RI under Section 342 read with 34 IPC; and
F
3 years RI under Section 27 of the Arms Act. The trial Court
also imposed a fine of Rs. 3000 and 1000 under Section 307
IPC and 27 of the Arms Act respectively. Accused No. 1 was
convicted and sentenced to life imprisonment under Section
302 read with 34 IPC, six months RI under Section 323 read G
_.. with 34 IPC, six months RI under section 342 read with 34 IPC.
Accused No. 3 was convicted and sentenced to life
imprisonment under Section 302 read with 34 IPC, seven years
RI under Section 307 IPC, six months RI under Section 323
read with 34 IPC, six months RI under Section 342 read with H
764 SUPREME COURT REPORTS [2009] 14 (ADDL.) S.C.R.

~
A 34 IPC; and six months RI under Section 30 of th~ Arms Act. ,
.._
t
{
The trial Court also imposed a fine of Rs. 3000 under Section
307 IPC. All the accused persons were also directed to pay a
sum 9f Rs. 1, 50,000/- in total as compensation under section
357 (3) of the Code of Criminal Procedure (in short "the CrPC') ·
8 to PW-1.

5. Aggrieved by the aforesaid decision of the trial Court,
the accused preferred two separate appeals in the Allahabad
High Court. Accused No. 2 preferred Criminal Appeal No. 234
~ ...
c cif 1996 and Accused No. 1 and 3 preferred Criminal Appeal
No. 235 of 1996. The High Court by its impugned judgment
dated 27.02.2002 allowed the aforesaid appeals and set aside
th_e decision of the trial Court thereby acquitting all the accused
from the aforesaid charges. ·•
D
-r-
6. Dissatisfied with and aggrieved by the decision of the
High Court, four Special Leave P·etitions (two by the
ComplainanVPW-1 and another two by the State of U. P.) were
preferred. Leave was granted by this Court in the Special
E Leave Petitions filed by the ComplainanVPW-1on29~08.2002.

7, Learned counsel appearing for the complainant as also
the State forcefully argued before us that the decision of th.e _ 4
High Court erroneously acquitting the accused persons suffers : ,,.
F
from serious. infirmity inasmuch as the three eye-witnesses '-
t

(PW-1, PW-2 and PW-3) were consistent in their statements
'I
and proved the prosecution case to the hilt as stated in the FIR
and that no contradiction could be proved of the facts stated in
t
...
the FIR and the statement of witnesses. It was further submitted
G
that the High Court failed to appreciate the fact that a father
,>..
would not unnecessarily implicate an inno~nt person at the cost
of sparing the real culprits responsible fort the murder of his two
,,.. grown up sons. It was further contended that the High Court
H
RAJ NARAIN SINGH v. STATE OF U.P. & ORS. 765
[DR. MUKUNDAKAM SHARMA, J.]

ignored the vital fact that Accused No. 1 and 2 were arrested A
from the spot and arms were recovered from their possession
immediately and that Accused No. 3 succeeded in absconding.
It was further submitted that the High Court wrongly discarded
the evidence of PW-3 on the ground that he could have got his
cattle grazed elsewhere and that his statement was recorded B
two days later from the date of occurrence. It was further
contended that the High Court erroneously came to the
) -4 conclusion that the prosecution failed to attribute to the accused
persons any motive for the commission of the said offence. It
was further submitted that the High Court failed to take into c
consideration the fact that the delay in madical examination of
PW-2 was adequately explained by the prosecution and that
could not have been made a ground for disbelieving the case
of the prosecution.
-y D
8. On the other hand, learned counsel appearing on behalf
of the accused persons strongly opposed the aforesaid
contentions and submitted that the High Court has rightly set
aside the decision of the trial Court as there are several serious
E
infirmities in the evidence of the prosecution witnesses and in
... the manner of recovery of seized weapons and cartridges. It
was further submitted that if the order of acquittal is one of the
~
possible view, the same deserves deference rather than
i interference by the appellate court. In support of the same, F
reliance has been placed on the decision of this Court in Rang
Bahadur Singh v. State of U. P., (2000) 3 SCC 454; Ghurey
Lal v. State of U. P., (2008) 10 SCC 450.

9. In view of the aforesaid submissions advanced by the G
~ parties, we will now proceed to address the submissions in light
of the evidence available on record.

10. The scope of appeals under Article 136 of the
Constitution is undisputedly very much limited. This Court does
H
766 SUPREME COURT REPORTS [2009] 14 (ADDL.) S.C.R.

A not exercise its overriding powers under Article 136 to reweigh ,
1
the evidence. The court does not disturb the concurrent finding
of facts reached upon proper appreciation. Even if two views
are reasonably possible, one indicating conviction and other
acquittal, this Court will not interfere with the order of acquittal.
B But this Court will not hesitate to interfere if the acquittal is
perverse in the sense that no reasonable person would have
come to that conclusion, or if the acquittal is manifestly illegal
or grossly unjust.Recently, in the case of Chandrappa v. State
of Kamataka, (2007) 4 SCC 415, at.page 432 this Court (per ).. ..-
c Thakker J.) after elaborately discussing the previous decisions
on this point has aptly summarized the law as follows:

"42. From the above decisions, in our considered view,
the following general principles regarding powers of the
'~
appellate court while dealing with an appeal against an
D order of acquittal emerge: ...,, -
( 1) An appellate court has full power to review,
reappreciate and reconsider the evidence upon which the
order of acquittal is founded.
E
(2) The Code of Criminal Procedure, 1973 puts no
limitation; restriction or condition on exercise of such power
and an appellate court on the evidence before it may reach ...
its own conclusion, both on questions of fact and of law. -"

F (3) Various expressions, such as, "substantial and
compelling reasons", "good and sufficient grounds", "very
strong circumstances", "distorted conclusions", "glaring
mistakes", etc. are not intended to curtail extensive powers
ofan appellate court in an appeal against acquittal. Such
.
\

G phraseologies are more in the nature of "flourishes of
language" to emphasise the reluctance of an appellate
court to interfere with acquittal than to curtail the power of
the court to review the evidence and to come to its own
conclusion.
H
RAJ NARAIN SINGH v. STATE OF U.P. & ORS. 767
[DR. MUKUNDAKAM SHARMA, J.]
{4) An appellate court, however, must bear in mind that in A
case of acquittal, there is double presumption in favour of
the accused. Firstly, the presumption of innocence is
available to him under the fundamental principle of criminal
jurisprudence that every person shall be presumed to be
innocent unless he is proved guilty by a competent court B
of law. Secondly, the accused having secured his acquittal,
the presumption of his innocence is further reinforced,
reaffirmed and strengthened by the trial court.

{5) If two reasonable conclusions are possible on the basis C
of the evidence on record, the appellate court should not
disturb the finding of acquittal recorded by the trial court."
1 i. The same view has been reiterated by this Court in
Ghurey Lal''· State of U.P., {2008) 10 SCC 450, at page 476,
in which on13 of us (Hon'ble Justice Dalveer Bhandari) after D
.-· 'f discussing ~l number of authorities on this issue summarized
the law as follows: · ""'
"69. The following principles emerge from the 'cases
above:
., E
1. The appellate court may review the evidence in
appeals against acquittal under Sections 378 and 386 of
the Criminal Procedure Code, 1973. Its power of reviewing
~ evidence is wide and the appellate court can reappreciate
the entire evidence on record. It can review the trial court's F
conclusion with respect to both facts and law.

2. The accused is presumed innocent until proven
guilty. The accused possessed this presumption when he
was before the trial court. The trial court's acquittal bolsters G
the presumption that he is innocent.

3. Due or proper weight and consideration must be
given to the trial court's decision. This is especially true
when a witness' credibility is at issue. It is not enough for
H
768 SUPREME COURT REPORTS [2009] 14 (ADDL.) S.C.R.

A the High Court to take a different view of the evidence.
Th.ere must also be substantial and compelling reasons for
holding that the trial court was wrong. n

12. Ther~ is no dispute with regard to the place of
commission of th~ crime. It was committed at the Dharamraj
8
Service Station. If we critically examine the evidence of PW 1,
there is nothing to doubt the correctness of the version given
~y him. PW-1, complainant in the present case has prayed the
FIR (Ext. Ka-5) lodged by him. He has stated the contents of
Ext. Ka-5 verbatim in his statement a11d in cross examination
C also there is no contradiction between the facts stated in the
FIR and his evidence in the trial Court which has been
.' corroborated by the evidence of PW-2 and PW-3. PW-3 in his
deposition before the trial court has categorically stated that he
" reached at 'bhita' in the morning at about 8 a.m.for grazing
D his cattle and after sometime while he was still there, he saw
that the Accused No. 3 was having an altercation with PW-2.
All the accused persons then started beating PW-2. PW-3
further stated that at that time PW-1 and one Adya Singh came
there and tried to intervene but Accused No. 2 fired a shot at
E PW-1 from his double barrel gun which, however, did not hit
PW-·1.' Upon this, sons of PW-1 namely, Rajesh and Brijesh,
reached the spot on their motorcycle and they were also fired
upon by Accused No. 2. The gunshots struck both th~
deceased persons who fell down from their motorcycle and
F died on the spot. · · ·

13. Thus, it is quite clear that PW-1, PW-2 and PW-3 who
were .eye-witnesses to the occurrence have fully proved the
incident and corroborated the statements mentioned in the FIR
and there is no inconsistency in the statements of all the three
G witnesses. There is no- material contradiction in the cross
examination and the entire.facts of the FIR which has been fuily ,
supported by the statements of all the three aforesaid
witnesses.

H
RAJ NARAIN SINGH v. STATE OF U.P. & ORS. 769
[DR. MUKUNDAKAM SHARMA, J.]

14. Another submission of the counsel appearing on A
}
behalf of the accused is that PW-3, being an employee of PW-
1, could not be said to be· an independent witness and therefore
his testimony could not be relied upon. We cannot accept this
contention as it neither finds any support from the prosecution
evidence nor has been proved by any defence witnesses. B
Counsel for the Respondent relied upon the statement of PW-
3 wherein he stated PW-1 as master for submitting that PW-3
is a servant of PW-1. But a careful perusal of his statement

- A
would indicate that PW.-3 called PW-1 as master as PW-1 was
a teacher and therefore he was described as master. From the
said evidence, it therefore, cannot be deduced that PW-3 was
c
a servant of PW-1.

15. From the perusal of the pdst mortem report and the
statement of the doctor it is clearly evident that the injuries on
the deceased persons were found to be on the chest which is D
~y
a vital part of the body and the death was natural as the bullet
had hit them. According to the statement of PW-7, the cause
of death was the gun shot ante-mortem injury on the vital part
of the body and from excessive bleeding and shock. According
to the statement of PW-7 at the time of firing of the gun its barrel E I

must have been at a distance of 3 to 6 feet from the dead
bodies. As a result of which the deceased Brijesh and Rajesh
41
had suffered injuries from the gun shots fired within 6 feet from
JI; the place where they were hit by the bullet and the same caused
their instant death. F

16. It is the case of the accused that the shot was fired by
the defence in their right of private defence. In the written
statement of Accused No. 2 recorded under Section 313,
Cr.PC, this fact has been accepted that there was quarrel
G
regarding petrol. Both deceased Brijesh and Rajesh came to
\ the petrol pump on motor cycle. Shots were fired
"' indiscriminately by Accused No. 2 from the licensed gun of
Accused No. 3. The shots hit Rajesh and Brijesh. They have

H
770 SUPREME COURT REPORTS [2009] 14 (AOOL.) S.C.R.

A also accepted the recovery of licensed gun of A3 from the petrol
pump. 1

17. The defence towards the end of the trial tried to put
up a version that the two deceased came there to the petrol
8 pump to commit robbery by hurling bomb and in the process
also caused damage to the petrol pump. Unfortunately, however,
no proof in support of the said contention could be produced
by the defence. There is nothing on record which can even
remotely. suggest that the act of the accused persons was in
exercise of their right of private defence. The investigation, at .,._ <
c th~ place of occurrence, soon after the incident did not reveal
any remains of bomb or recovery of any firearm from the hands
of the deceased or any damage to the petrol-pump. No inju·ry
was also found on the bodies of the accused. It is pertinent to
mention here that no suggestion regarding recovery of any
D bomb materials or detection of any signs of damage to the
)
petrol pump by the deceased persons and PW-2, was put by -( 'Y}=
the defence to either PW-10 or PW-11, both of whom were
present at the place of occurrence at the time when the
showroom of the accused persons was searched and weapons,
E cartridges and other articles were seized. Thus, the submission

-
of the defence with regard to the alleged exercise of right of
priva~e-defence by the accused persons being without any
'
basis, the same also fails.
4
F 18. As far as the allegation of delay in lodging of FIR· is
concerned, it was been stated on behalf of the prosecution that
the incident had taken place at 8.30 a.m. and as per the FIR
the police station Mariyahun is about 7 km from the place of
occurrence. It is the case of the defence that as the report was
~-
lodged at the police station at 9.10 a.m., the same being very
G
prompt, therefore, there is bungling regarding report and time
of FIR. It was contended that the deceased Brijesh and Rajesh
,i.
were the sons of PW-1and they died on the spot and in such a
situation, the natural conduct of father loosing two sons would
be to stay with the sons and weeping instead of going to the
H
RAJ NARAIN SINGH v. STATE OF U,P. & ORS. 771
[DR. MUKUNDAKAM SHARMA, J.]

police station immediately to lodge an FIR. However, we are A
unable to accept such contention, as it is devoid of any merit.
/
In the present case it is quite clear from the evidence of the
witnesses that first of all, PW-2 who was relative of the PW-1
came to the petrol pump i.e. the place of occurrence. The
altercation arose between PW-2 and Accused No. 3. All the B
three accused then started beating PW-2. PW-2 was_ then
dragged and looked inside the show room. When PW-1 came
to prevent the accused from doing this, the Accused No. 2 fired
shot at him but by chance the shot did not hit him. At that time,
the deceased Rajesh and Brijesh emerged there on motorcycle,. c
On the exhortation by the accused persons, Accused No. 3 fired
shots aiming at them, due to which Brijesh and Rajesh fell down
and died on the spot. It is also proved from the evidence that
PW-1 along with his companion Adya Prasad Singh again
came forward to his sons then the accused Pushkar again fired D
a shot. In the aforesaid circumstances, it is quite clear that PW-
- y
1 could not reach upto his sons after they fell down due to
firing. It is also clear from the record that the two accused had
locked PW-2, a relative of PW-1 in their custody and at that
time Accused No. 2 was having a gun. In the aforesaid
circumstances, when PW-1's both son fell down, his relative
E
(PW-2) was in the custody of the accused persons, PW-1 had
indeed no other option except to approach the police station.
~
That was also necessary since there was also danger to the
.<( life of PW-2. In the aforesaid circumstances, we find no reason
to doubt the prompt registration of the FIR. F

19. Another submission which was made on behalf of the
accused was that PW-1 to PW-3 are interested witnesses and
there are some contradictions in their statements. It has been
contended that PW-1 and PW-2 are related to each other and G
also with the two deceased as both deceased were the sons
of PW-1. However, PW-3 cannot be said to be in any way
interested with PW-1 or PW-2 nor he had enmity with the
accused persons. A perusal of the evidence of PW-3
unmistaKably makes it quite clear that on the fateful day, he H

;
772 SUPREME COURT REPORTS [2009) 14 (ADDL.) S.C.R.

A proceeded at 6 O'clock from his house for grazing cattle and
had reached at 8 O'clock, at 'bhita' in front of petrol pump 1
towards east of the road along with his cattle. The incident took
place in the month of May and as the cattle were grazing, his
presence at the place at 8 a.m. cannot be doubted.
B
20 . .The learned counsel appearing for the accused has
strenuously argued and drawn our attention to the fact that the
prosecution has not examined the other witnesses availabie on
the spot. However, we are unable to accept the said contention
as it is not.necessary that all those persons who were present \,... '-

c at the spot must be examined by the prosecution in order to
prove the guilt of the accused. Section 134 of the Evidence Act
p,rov.ides that no particular number of witnesses is required for
proof of any fact. It is trite law that it is not the number of
witnesses but it is the quality of evidence which is required io
D be taken note. of by the courts for ascertaining the truth of the
allegations made against the accused. In the Takhaji Hiraji v. 'f ~

Tha.kore Kubersing Chamansing, (2001) 6 SCC 145, at page

E
155,.this Court observed as follows:
•
"19. So is the case with the criticism levelled by the High
. Court on the prosecution case finding fault therewith for
.non-examination of independent witnesses. It is true.that fl
if a material_ w~tness, who would unfold the genesis of the ~-

incident 9r an essential part of the prosecution case, not
~

F convincingly brought to fore otherwise, or where there is
a gap or infirmity in the prosecution case which could
have been supplied or made good by examining a
witness who though available is not examined, the
prosecution case can be termed as suffering from a
deficiency and wfthholding of such a material witness
G
would oblige the court to draw an adverse inference
against the prosecution by holding that if the witness
~
would have been examined it would not have supported
the prosecution case. On the other hand if already

H
RAJ NARAIN SINGH v. STATE OF U.P. & ORS. 773
[DR. MUKUNDAKAM SHARMA, J.]

overwhelming evidence is available and examination of A

- other witnesses would only be a repetition or duplication
of the evidence already adduced, non-examination of
such other witnesses may not be material. In such a case
the court ought to scrutinise the worth of the evidence
=f adduced. The court of facts must ask itself- whether in ~
the facts and circumstances of the case, it was necessary
to examine such other witness, and if so, whether such
witness was available to be examined and yet was being
withheld from the court. If the answer be positive then only
~

--t
a question of drawing an adverse inference may arise. If c
the witnesses already examined are reliable and the
testimony coming from their mouth is unimpeachable the
court can safely act upon it, uninfluenced by the factum
of non-examination of other witnesses. In the present case
I
we find that there are at least 5 witnesses whose presence D
~ ,, at the place of the incident and whose having seen the
incident cannot be doubted at all. It is not even suggested
,. by the defence that they were not present at the place of
the incident aRd did not participate therein. The injuries
sustained by these witnesses are not just minor and
certainly not self-inflicted. None of the witnesses had a E
._,, previous enmity with any of the accused persons and there
is apparently no reason why they would tell a lie. The
""'\ genesis of the incident is brought out by these witnesses.
I'
-'(
In fact, the presence of the prosecution party and the
accused persons in the chowk of the village is not disputed. F
How the vanity of the Thakores was hurt leading to a
heated verbal exchange is also not in dispute. Then
followed the assault. If the place of the incident was the
- chowk then it was a sudden and not premeditated fight
between the two parties. If the accused persons had G
reached their houses and the members of the prosecution
~
party had followed them and opened the assault near the
house of the accused persons then it could probably be
held to be a case of self-defence of the accused persons
H
774 SUPREME COURT REPORTS [2009] 14 (ADDL.) S.C.R.

A in which case non-explanation of the injuries sustained by
the accused persons would have assumed significance. 1
The learned Sessions Judge has on appreciation of oral
and circumstantial evidence inferred that the place of the
incident was the chowk and not a place near the houses
B of the accused persons. Nothing more could have been .'
revealed by other village people or the party of tightrope
dance performers. The evidence available on record
shows and that appears to be very natural, that as soon
as the melee ensued all the village people and tightrope
~
c dance performers took to their heels. They could not have
seen the entire incident. The learned Sessions Judge has
minutely scrutinised the statements of all the eyewitnesses
and found them consistent and reliable. The High Court
made no effort at scrutinising and analysing the ocular
testimony so as to doubt, if at all, the correctness of the
D
several findings arrived at by the Sessions Court. With the
assistance of the learned counsel for the parties we have
'( -
gone through the evidence adduced and on our
independent appreciation we find the eyewitnesses
consistent and reliable in their narration of the incident. In
E
our opinion non-examination of other witnesses does not
cast any infirmity in the prosecution case."
,_.
(emphasis underlined)
~

F 21. Further, we cannot lose sight of the fact that ghastly
acts, of the nature 'and gravity as the µresent one, when
committed in a public place ·may very well create a sense of
fear and shock in the minds of the witnesses and thus prevent

G
them from coming forward and deposing against the
perpetrators of the crime. If the testimonies of those witnesses,
who have deposed during the trial, are otherwise found to be
reliable, trustworthy and cogent, the said evidence cannot be
-
~
disbelieved or discarded merely because the prosecution has
failed to examine other witnesses allegedly present on the SP'Ot.

H
....
RAJ NARAIN SINGH v. STATE OF U.P. & ORS. 775
[DR. MUKUNDAKAM SHARMA, J.]

~ 22. Another submission which has been advanced by the A
,..
learned counsel for the accused is that the story of Accused
No. 1 and Accused No. 2 locking the PW-2 in the showroom
is completely unbelievable. As discussed hereinbefore, on
altercation having taken place for petrol, PW-2 was assaulted
by the accused persons and forcibly taken t.o the showroom 8
and locked in there immediately thereafter. On being asked by
PW-1 not to do the same, the gun shot was fired at him but he
retreated to safety. Thereafter, when both deceased, Rajesh
,'
""· and Brijesh, the two sons of PW-1 reached the spot, two
consecutive shots were fired at them which resulted in their c
death and thereafter again gun shot was fired towards PW-1.
This fact is quite clear not only from the evidence of PW-1 but
has also beer) fully corroborated by the evidence of PW-2 and
PW-3. It is quite evident from the record that a big crowd

- ,, gathered at the spot. Under the said circumstances, it was quite
natural for the accused persons to keep PW-2 in their custody.
Making PW-2 captive, a fact to which PW-11, the SSI who was
D

investigating the case was also a witness, could well protect
the accused persons from the crowd which had come to the
place of occurrence after hearing the gunshots. Making PW-2
captive could also protect the petrol tank from being damaged E
by the pressure of the agitated crowd. The injuries were found
~
on the body of PW-2 by the doctor who had examined him soon
_,, after the incident at 1.50 pm on the same day.
-.c
1
23. The name of Surendra Kumar servant has been F
disclosed after his death, for the first time in the statement under
Section 313 CrPC and prior to that the name of Surendra
..... Kumar was never even referred to at any place. The fact that
Surendra Kumar was a servant at the petrol-pump at the time
of incident has not been proved by any oral or documentary G
evidence by the defence.

24. In view of the aforesaid discussion, facts and
circumstances of the case, we are of the considered view that
the High Court clearly erred in reversing the order of conviction
H
776 SUPREME COURT REPORTS [2009] 14 (ADDL.) S.C.R..

A recorded by the trial Court. Accordingly, we set aside the .f
.,
judgment and order of the High Court and restore the judgment
and decision of the trial Court.

25. The appeals ~re hereby allowed. The bail bonds of the
Accused No. 1, Accused No. 2 and Accused No. 3 stand
B
cancelled and they are directed to surrender before the jail
authorities within 15 days from today, failing which the
authorities are directed to proceed in accordance with law.

.26. The appeals are hereby allowed in terms of aforesaid
c order.
K.K.T. Appeals allowed.

~
"
, ·1('~
"