Supreme Court of India
RAM NARAYANversusSTATE OF U.P.
- Citation
- 2009 INSC 587
- Decided
- 22 April 2009
- Disposal
- Dismissed
- Bench
- ARIJIT PASAYAT
Holding
The High Court’s conviction of the appellant was justified and the appeal is dismissed.
Summary
The appellant Ram Narayan and eight others were tried for offences under Sections 147, 148, 302, 307 and 436 read with Section 149 of the Indian Penal Code arising from a three‑stage violent incident. The trial court acquitted all accused, relying on alleged inconsistencies in the FIR, the semi‑digested food found in the deceased’s stomach, the source of light at the scene, and perceived deficiencies in the investigation. The Allahabad High Court set aside the acquittal of the appellant, convicting him on the basis of eye‑witness testimony, medical evidence and the presence of a light source, while maintaining acquittals of the remaining accused. On appeal, the Supreme Court held that the High Court’s analysis was sound and that the trial court’s judgment was based on surmise and conjecture, failing to consider relevant evidence. Consequently, the appeal was dismissed and the conviction upheld.
Issues considered
- Whether the trial court erred in acquitting the accused on the basis of alleged inconsistencies in the FIR, medical evidence and investigation.
- Whether the High Court was justified in overturning the acquittal and convicting the appellant under IPC Sections 302, 307, 436 read with 149.
- Whether the evidence on record was sufficient to establish the offences charged.
- Whether the delay in lodging the FIR and the alleged ante‑timing of the report affect the credibility of the prosecution case.
Legislation cited
- Indian Penal Code, 1860s. 147, s. 148, s. 149, s. 302, s. 307, s. 436
Subjects
criminal lawconvictionacquittalevidence appraisalIPC sections 302, 307, 436, 149trial court errorappellate review
Judgment
[2009] 6 S.C.R. 817
'
RAM NARAYAN A
v.
STATE OF U.P.
(Criminal Appeal No.1339 of 2005)
APRIL 22, 2009
B
[DR. ARIJIT PASAYAT AND ASOK KUMAR
GANGULY, JJ.]
Penal Code, 1860:
c
ss.3021149, 3071149 and 4361149 - Prosecution of 9
persons - Acquittal by trial Court - Pending appeal three
accused died - High Court convicting one of the remaining
accused and acquitting the others - Held: Analysis made by
High Court does not suffer from any infirmity - On the D
contrary, judgment of trial Court was based on surmises and
conjectures - High Court was justified in recording conviction.
The appellant and eight others were prosecuted for
commission of offences punishable u/ss.147, 148, 302/
149, 307/149 and 436/149 IPC in connection with a chain E
of three incidents taking place at different places. The
prosecution case was that there was enmity between the
complainant group and the accused party. On the day of
incident at about 7.30 p.m., the accused, armed with
bombs, a gun, a country made pistol, spear, pharsa and F
lathis, went to the shop of 'S', the younger brother of the
informant, and fired at him from the gun and the pistol
and also threw bombs at him. 'S' anyhow saved himself
and ran from that place. The accused then went to the
- ... shop of the informant in search of '5', but no.t finding him G
there, threw bombs and also fired some shots. One of the
accused set fire to the shop of the informant. Then the
accused went to the house of the informant and not
finding 'S' there, threw a bomb at 'GP'. One of the -
817 H
818 SUPREME COURT REPORTS [2009) 6 S.C.R.
A accused also fired at him from the pistol. 'GP' died at the
spot. The trial Court found that though incidents were
reported to have taken place at 7.30 p.m. but FIR was
lodged belatedly at 8.30 p.m. with deliberation; that the
semi-digested food found in the stomach of the deceased
B suggested that he must hav~ died at 5.30 p.m. and not at
7.30 p.m.; and that regardi!J9 the source of light to be an
electric bulb, report of Electricity Department was not on
the record nor anybody from the. said Department was
examined to prove the case. On these premises mainly,
c the trial court doubted the prosecution case and acquitted
all the accused_. The High Court, however, set aside the
acquittal as regards the appellant and convicted him.
Three of the accused having died pending appeal, their
appeal abated. The High Court maintained acquittal as
regards the remaining five accused.
D
Dismissing the appeal, the Court
HELD: The analysis made by the High Court does not
suffer from any infirmity. On the contrary the trial court's
E judgment proceeded on surmises and conjectures and
was based on totally inappropriate appreciation of the
evidence. Relevant aspects were not considered and
irrelevant aspects were taken into account by the trial
court Therefore, the High Court was justified in recording
F conviction. [Para 13] (828-C-E]
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 1339 of 2005.
From the Judgment & Order dated 4.4.2005 of the High
G Court of Judicature at Allahabad U.P. in Government Criminal
Appeal No. 1270 of 81. ~
-
Abhisth Kumar, Archana Singh, Shantanu Krishna and
Pankaj Sharma for the Appellants.
H S.K. Dwivedi, Vivek Singh, Prashant Chaudhary, S.K.
RAM NARAYAN v. STATE OF U.P. 819
Mishra and Praveen Swarup, for the Respondents. . A
The Judgment of the Court was delivered by
.DR. ARIJIT PA~AYAT, J. 1. Challenge in this appeal is
to the judgment of a Division Bench of the Allahabad High Court
setting aside the judgment of acquittal recorded by the then Ill B
Additional Sessions Judge, Deoria in Sessions Trial No.347
of 1978. The accused persons faced trial for alleged
commission of offences punishable under Sections 147, 148,
307 read with Section 149, Section 436 read with Section 149
and Section 302 read with Section 149 of the Indian Penal C
Code, 1860 (in short the "IPC'). Nine persons faced rial. All of
them were charged under Section 307 read with section
149,436 read with section 149 and 302 read with section 149
l.P.C. Indra Jeet, Awadh Narain and Raj Banshi Tiwari were
charged for rioting under section 147. l.P.C. whereas the rest D
under section 148 l.P.C. The incident occurred on 7.7.1978 at
about 7.30 P.M. at three places within Police Station Kotwali,
District Deoria. The F.l.R. was lodged the same night at 8.20
P.M. by Brij Raj Tiwari (PW-1). One Gunj Prasad Tiwari
(hereinafter referred to as the"deceased') was murdered in the E
incident whereas Subhash (PW 2), Devi Prasad Pandey (PW
5) and Virendra Kumar sustained injuries.
2. The case of the prosecution as unfolded during trial
through F.l.R. and the evidence may be related thus. Brij Raj
Tiwari (PW 1) resided in village Deoria Ram Nath, Police F
Station Kotwali, District Deoria. The accused were also the
residents of the same place. Sarvajeet, lndrajeet and Jagdish
accused were real brothers. Om Prakash was the nephew of
Sarvjeet and other. Durga Prasad was the· son of accused
Awadh Narain. The accused Rajbanshi Tiwari and Raj Kishore G
were Patidars of accused Awadh Narain and the accused
Awadh Narain and accused-appellant belonged to the group
of the remaining accused. Enmity on account of litigation was
going on between the family of the informant Brij Raj Tiwari PW
1 on the one hand and the accused Sarvjeet and Raj Kishore H
820 SUPREME COURT REPORTS (2009] 6 S.C.R.
A on the other. Earlier to the present incident, on the eve of Holi
some one had inflicted a knife blow on the accused Sarvjeet
in which Subhash Tiwari PW 2 (brother of the informant) was
implicated as accused. Sometime thereafter, Hari Ram first
cousin of accused Durga was also inflicted knife blow by
B someone in which the informant, his father Guru Prasad the
deceased, Mahasarey, Subhash Tiwari (PW-2) and Jai
Shankar were implicated as accused. Proceedings under
sections 1071117 of the Code of Criminal Procedure, 1973 (in
short the 'Code') had also been drawn between the informant
C and others on one side and the accused Durga and Hari Ram
on the other. In front of the door of the house of the informant
there was a flour mill adjacent to which on the northern side the
house of the accused Durga Prasad and Hari Ram was
situated and on the eastern side thereof the house of the
D accused Sarvjeet was situated at a distance of about 10 paces
from the flour mill. During the thrashing season, dust and sound
came to be produced because of generation of the flour mill to
the disliking of the accused. The accused Sarvjeet, Durga
Prasad and Hari Ram had applied for electric disconnection
of the informant before the Electricity Department prior to the
E present incident in which , the accused Raj Kishore was cited
as a witness. A case under Section 133 of Code was instituted
against the informant by the police which came to be decided
in favour of the informant. So, there was a l9ng string of enmity
between the two sides.
F
The present incident occurred in three parts. At about 7.30
P.M. on 7th July, 1978 Subhash- the younger brother of the
informant was sitting at his grocer's shop on the crossing in front
of the house of Sri Vishwa Nath Pandey, Advocate. All the
G accused with 2 or 3 other companions reached there. Sarvjeet
and Om Prakash had bombs in their hands; Jagdish had a gun; .. "'
Ram Narain had country made pistol; Raj Kishore had a spear.
Durga Prasad had a Pharsa and the remaining accused had
lathis. As soon as they reached the shop of Subhash, accused
H Sarvjeet and Om Prakash attacked Subhash by means of
RAM NARAYAN v. STATE OF U.P. 821
[DR. ARIJIT PASAYAT, J.]
'y bombs, Ram Narain by means of country made pistol and A
Jagdish by means of gun. Subhash ran for his life and anyhow
saved himself but was hurt in his leg in this process. This
occurrence was witnessed by Jagdish Mani, Chandbali Pasi,
Brijesh Tiwari and others.
B
The second part of the incident was that the accused came
running t<;> the grocer's shop of the informant at Bhatwalia
Crossing in search of Subhash and not finding him there, threw
~ bombs and also fired. The accused lndrajeet set fire to the shop
of the informant which was reduced to ashes. Mahasarey-
brother of the informant, Devi Prasad Pandey, Surendra
c
Prasad, Rajesh Singh and others witnessed this incident. Then
the accused came running to the door of the ~ouse of the
informant where Guru Prasad the deceased was present. They
inquired from him about Subhash saying that he would not be
left alive that day. Guru Prasad wanted to know as to what the D
matter was. But the accused Sarvjeet instigated the remaining
accused saying that if Subhash was not available, he (Guru
Prasad) should be killed. Instantaneously, Sarvjeet attacked
Guru Prasad Tiwari throwing a bomb and Ram Narain by
means of the country made pistol. Guru Prasad died on the E
spot. The incident was witnessed by the informant Ram Darash
Tiwari, Bhagirathi Yadav, Nand Kishore, Hari Prasad and
Munni-sister of the informant. The accused persons then ran
away. At the time of the incident electric light was available at
the door of the informant. This was the third part of the incident. F
Leaving the dead body of his father at the door, the
informant went to the Police Station, and lodged the F.l.R.
resulting in registering of the case. Investigation was taken up
by Tota Ram Gupta (PW-13). It may also be related here that G
the injuries of Subhash Tiwari (PW 2), Virendra and Devi
... ~
Pandey (PW-5) were examined on 7.7.1978 at 10.45 P.M.,
10.55 P.M. and 11.05 P.M. respectively by Dr. J.N. Thakur
(PW 8).
After completion, of investigation charge sheet was filed H
822 SUPREME COURT REPORTS (2009) 6 S.C.R.
I
A and the accused persons faced trial as they denied
accusati_ons.
Thirteen witnesses were examined to further prosecution
version. The trial Court held that the accused persons were
entitled to acquittal as the witnesses examined did not establish
8
the accusations. An appeal was filed questioning the acquittal.
The High Court found that PWs 1, 4 and 6 who are eye
witnesses clearly established the accusations. It also found that •
the source of light was mentioned in the FIR. Accordingly, the
c acquittal was set aside and appeal was allowed qua the
present appellant.
It was noted that the appeal had abated in respect of
accused Sarvjeet, Om Prakash, Raj Kishore and Awadh Narain
D who died during the pendency of the appeal. The acquittal
recorded for the remaining accused persons namely, lndrajeet,
Jagdish, Ram Narain, Durga Prasad and Raj Banshi Tewari
was maintained.
3. Learned counsel for the appellant submitted that the
E aspects highlighted by the trial Court to record acquittal should
not have been upset by the High Court when the view taken by
the trial Court was not perverse and was a possible view.
4. Learned counsel for the respondent -State on the other
F hand supported the judgment of the High Court.
5. The various aspects which weighed with the trial Court
to record acquittal and which weighed with the High Court to
record conviction need to be noted.
G 6. The first circumstance highlighted by the trial Court
related to the written report i.e. FIR. It noted as follow:
. ..
An FIR has been lodged at the P .S. after
deliberation and consultation including that of police and
H does not appear to have been prepared by the informant
RAM NARAYAN v. STATE OF U.P. 823
[DR. ARIJIT PASAYAT, J.]
-r
only, on his own showing and showing and contained · A
twisted and false version of occurrence and was also ante
timed.
That incident took place about 7.30 p.m. on 7.7.1978
and the written report was prepared and lodged at P.S.
B
at 8.20 p.m. even when the occurrence itself had taken
place at three different places in quick succession of each
t other and had taken about half an hour or so in all even
when the P.S. was 1= k.m. far from the place of
occurrence.
c
That the informant (PW-1) had not even witnessed
the occurrence at first two places but the written report
shows as itself that PW-1 had witnessed the entire
occurrence from start to end at all the three places as
because it was written in that very fashion. D
That in evidence the informant (PW-1) admitted that
neither PW-2 nor PW-3 or any one else as a matter of fact
had told him the names of the witnesses of the first and
second incidents yet their names do find place in the
E
written report which PW-1 was not able to explain at all.
All the PWs examined including informant PW-1 Brij
Raj Tiwari started changing the time of occurrence at the
stage of evidence as in the FIR the gap was only 50
minutes. PW-1 says he reached his house at 7.00 p.m. and F
G.P. Tiwari was shot dead within 4-5 minutes showing that
the first two incidents did not take place at 7.30 p.m. Injury
to Subhash Tiwari is not mentioned in the GD, Ka-11.
Subhash (PW-2) says that occurrence took place at 7.15
~ ,. p.m. at his grocery shop. Kumari Munni (PW-4) and Nand G
Kishore (PW-6) had not told any time to 10. In exhibit ka-
6 copy of the FIR time of occurrence is mentioned as 7.45
p.m. In exhibit Ka-14 challan of dead body, the time is 7.45
p.m. In the inquest report there is overwriting about time.
In exhibit ka-6 to ka-9 the letters written for medical H
~
824 SUPREME COURT REPORTS [2009) 6 S.C.R.
A examination of injured there is no crime number or
sections of crime mentioned. This shows ante timing.
On the other hand the High Court noted as follows:
The Trial judge had on justification to criCcize the F.l.R as
B being too prompt.
FIR was lodged by PW-1 on getting information of the first
two parts of the. incident from his brothers Subhash (PW- '
2) and Mahasarey (PW-3) and there was nothing wrong
c in including full particulars of those two parts of the
incidents. Rather by giving details of earlier parts in the FIR
it appears to be a genuine document ringing of spontaneity.
Cloud could not be imported on the 3rd part of the incident:
7. The second circumstance relates to the medical
D evidence qua the food contents. The trial court found as follows: ~
That semi digested food (rice, dal, mango) were
found in the stomach of Guru Prasad which showed and
=
suggested that at least 2 to 2 hours prior to his death,
E the deceased must have taken the meals and if
occurrence had taken place at 7.30 p.m. the deceased
must have died at about 5.30 which was no body case.
According to the post mortem examination report the
injury No.1 could be caused by a bomb which appears to
F
be wrong because the doctor had also mentioned in the
report as well as stated in evidence that the wound showed
blacking and tattooing, which was not possible in case it
was caused by bomb.
~
G That the doctor also admitted when cross examined t"
that.he had not consulted any ballistic expert and
deceased could be injured in a sleeping condition also and
wads are generally found in gun.
H That he did not find any pieces of glass, nails or
RAM NARAYAN- v. STATE OF U.P. 825
[DR. ARIJIT PASAYAT, J.]
metallic in the injury No.1 of the deceased and he could A
not give any definite opinion as to whether injury No.1 could
be caused by gun shot on the head from a close range
nor he could give definite opinion if it caused by bomb
blast.
B
8. The High Court's findings relating to medical evidence
are as follows:
~
High Court did not agree with the trial Judge that the
time of the incident was rendered doubtful because of the
stomach contents of the deceased. c
-(
That the gist is that the state of stomach found at the
time of medical examination is not a safe guide for
determining the time of occurrence because that would be
a matter of speculation. D
That the trial court was not justified in doubting the
time of incident on the basis of stomach contents of the
deceased.
That the trial Judge wrongly held that the ante mortem E
injury No.1 of the deceased was not caused by bomb
instead it was caused by gunshot.
' I That the blackening and tattooing around the skin did
not rnean that it was not a blast injury nor did the recovery F
of two wadding places from the lacerated brain tissues
negate it to be a bomb blast injury.
However, under the stress of cross examination
doctor (PW-7) stated that he had not taken the opinion of
-~ .. Ballistic Expert and could not definitely say whether ante G
mortem injury No.1 was caused by bomb blast or gunshot.
9. The third aspect related to the presence of source of
light. The trial court noted as follows:
H
826 SUPREME COURT REPORTS [2009] 6 S.C.R.
A That according to the written report the only source
of light present at the scene of occurrence was that of bulb
lighted at the door of the house of informant which was
claimed by the prosecution and report was obtain~d from
the Electricity department but even that report was not on
B record nor any one examined from the Electricity
Department to prove the case.
10. On the other hand the High Court' s finding are as
follows:
c For no good reason the trial Judge doubted the
presence of light at the spot where the third part of the ...
incident took place.
In view of the overwhelming evidence on the point of
D light on the spot though the bulb glowing at point "P' shown
in the site plan by the 1.0. it hardly affected the prosecution
case that the bulb was not produced by the prosecution
at the trial.
11. One of the aspects which weighed with the trial Court
E related to the ineffective investigation, if any.· The same reads
as follows:
That even the investigation of this case was tainted
from start to end on their own showing of the prosecution.
F
That alleged enmity and fired cartridge recovered
from the road after the occurrence was ·Gevelot' but
according to the recovery memo it was 'Elly'.
That not a single line in the case diary was written
G by 1.0. himself.
~·
The articles recovered from the scene of the
'"
occurrence were not sent to the police station even next
day of occurrence and were deposited on 9.7.1978 and
H all parchas were sent to the police office as late as on
/'
RAM NARAYAN v. STATE OF U.P. 827
[DR. ARIJll PASAYAT, J.]
~
2.8.1978 excepting two but why they were sent so late was A
not explained either by prosecution or any body examined
... in this case including 1.0.
12. So far as the analysis of the evidence is concerned
the trial court referred to various aspects:
B
The very fact that the first two incidents are found to
be not proved and concocted, the 3rd incident could hardly
be true, especially when FIR is lodged after deliberation
and is ante time.
c
Brij Raj Tiwari (PW-1) wrote the FIR as if he had
seen the first two parts of the incidents though he had not
witnessed the same. This shows the extent to which he can
go to tell lies. He states that Kumari Munni (PW-4) came
out to give clothes to him when the father was killed but D
PW-4 contradicts him by saying that she came out after
' hearing the alarms. He mentioned in FIR that Raj Kishore
had spear but in deposition he assigned a gun to him and
does not say that anyone else had a spear injury to the
deceased was not caused by bomb at all. PW-1 admits
E
he was ex convict and involved in lot of litigations. He says ·
he cannot tell the name of person who told him about the
first two incident. He had not seen the clothes of Subhash
liwari (PW-2) nor did he know of the injury of D.P. Pandey
(PW-5) yet he mentions these facts in the written report.
He says that accused came looking for Subhash and not F
finding him killed the father but none of them tried to harm
him or other members of family. This is strange~
Kumari Munni (PW-4) changes her story about
coming out of the house on alarm being raised. She admits G
... + that her mother and other ladies did not come out of the
house which is strange. She claims that witnesses had
come before the arrival of the accused which is against
prosecution story.
H
828 SUPREME COURT REPORTS [2009) 6 S.C.R.
i
A Nand Kishore (PW-6) is a neighbour. He claims he
was at his door when he heard alarms and on reaching
the scene he saw the accused were inquiring Subhash and
then hurled bomb and then fired on the deceased. This is
-
contrary to the versions of PW-1 and PW-4 according to
B whom witnesses were already there. He has his own
enmity with the accused. He says that he stood at north
western side of the house but did not go to the door of Brij
Raj :nwari but in his statement he says he went to the doo,r
of Brij Raj Tiwari. He says that deceased went a little on
c the western side after being injured and fell down there
near the road. This is nobody's case. He says that he did
not talk with the informant nor did he see him doing
anything.
13. The analysis made by the High Court does not suffer
D from any infirmity. On the contrary, the trial Court's judgment
I
proceeded on surmises and conjectures and was based on
totally inappropriate appreciation of the evidence. Relevant
aspects were not considered and irrelevant aspects were
taken into account. Therefore, the High Court was justified in
E recording conviction.
14. The appeal is without merit and is dismissed.
R.P. Appeal dismissed. I
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