Holding

The prosecution proved the case beyond reasonable doubt and the convictions under Sections 302 r.w. 149, 147 and 148 IPC stand.

Summary

The appellants were convicted for the murder of Raj Kumar under Section 302 read with Sections 149, 147 and 148 of the Indian Penal Code. The prosecution's case rested on the testimony of two eye‑witnesses, Prahlad (PW‑4) and Daya Wati (PW‑5), who were alleged to be interested witnesses, and on medical evidence that the injuries were sufficient to cause death. The defence argued that the witnesses were biased, that other eyewitnesses were not examined, and that the FIR was ante‑dated. The Supreme Court held that the two witnesses were truthful, that their proximity to the incident and cross‑examination removed any suspicion, and that the failure to examine other witnesses was not the fault of the investigating officer. The medical report corroborated the cause of death, and the prosecution was found to have proved the case beyond reasonable doubt. Consequently, the Court dismissed the appeals and upheld the convictions.

Issues considered

Whether the testimony of interested witnesses PW‑4 and PW‑5 can be trusted despite alleged enmity between the parties.
Whether the non‑examination of other eyewitnesses vitiates the prosecution's case.
Whether the prosecution established guilt beyond reasonable doubt under Section 302 read with Section 149, 147 and 148 IPC.
Whether the FIR was ante‑dated and, if so, whether it affects the conviction.

Legislation cited

Indian Penal Code, 1860s. 147, s. 148, s. 149, s. 302

Subjects

MurderUnlawful assemblySection 149 IPCWitness credibilityInterested witnessMedical evidenceConvictionAppeal

Judgment

[2009] 13 (ADDL.) S.C.R. 562

A RAMESH AND ANR
~· "'
v.
STATE OF U.P.
(Criminal Appeal No. 184 of 2005)

AUGUST 25, 2009
B
[V.S. SIRPURKAR AND DEEPAK VERMA, JJ.]

Penal Code, 1860- s.302 rlw s.149 - Murder caused by
unlawful assembly with common object - Death due to gun-
c shots from country made pistol - Autopsy report indicated that
all 3 injuries on deceased were sufficient in ordinary course
of nature to cause death - Prosecution case based on two
eye-witnesses PWs 4 and 5 - Conviction of accused-
appellants - Challenge to - Contention raised that PW-4 and
D PW-5 were interested witnesses and other witnesses not
examined by prosecution - Held: PW4 and PW5~were rightly
believed by Courts below - Both witnesses gave graphical
description of the whole incident - Due to enmity between the
parties, no other witness came forward to give testimony,
E hence no fault of Investigating Officer - Prosecution proved
its case to the hilt - Courts below right in convicting the
appellants.

According to the prosecution, the appellants and four
others dragged PW1 's brother and pulled him to a spot
F near the village tube-well and caused his death by firing
gun-shots at him from a country made pistol. PW2, who
performed the autopsy, confirmed that all three injuries
on the deceased were sufficient in the ordinary course
of nature to cause death. There was enmity between the
G accused party and the complainant party. The Trial Court
convicted the appellants under s.302 r.w. ss.149, 147 and
~ ...
148 of IPC. The conviction was upheld by the High Court.

The conviction of the appellants was challenged
-
H 562
RAMESH AND ANR v. STATE OF U.P. 563

before this Court inter alia on grounds that the A
....
• prosecution case was based on evidence tendered by
interested witnesses PW-4 and PW-5 and that two other
witnesses who were admittedly present at the place of
occurrence were not examined by the prosecution.
B
Dismissing the appeals, the Court

HELD: 1.1. The eye-witnesses PW4 and PW5 are
truthful and were rightly believed by the High Court. Both
the witnesses have given the graphical description of the
whole incident [Para 7] [569-D-E] c
1.2. Merely because PW-4 was not from the same
village, it cannot be said that he had no business in the
village. It has come in the evidence clearly that the
distance between the village of PW-4 and the village D
r
_.. where the incident took place is hardly about 1.5 km.
Therefore, his coming to the village for purchasing the
seeds cannot be viewed with a suspicion. It is also not
necessary that PW-4 should have straightaway gone only
to the shop of the seeds and purchased the seeds. After
E
all, PW-4 knew the deceased and in fact, PW-4 was cross-
examined in that direction. If PW-4 already knew deceased
and if he went just to visit him, this by itself, would not
be reason to disbelieve his testimony. In villages, the
people do normally go to each other's house. Again the
criticism that PW-4 had no business to go and F
accompany deceased to his field, is also of no
consequence, as PW-4 might have walked alongwith
deceased hardly for 20-25 paces. In fact, the distance
between the house of deceased and his tubewell is
hardly about 100-125 paces, which has come in the G
....... evidence. Therefore, even if PW-4 walked alongwith
deceased, that by itself, does not make his version
suspicious in any manner. The cross-examination is
lacklustre and nothing has been brought in the same.
Ordinarily the deceased would not have gone alongwith H
564 SUPREME COURT REPORTS [2009] 13 (ADDL.) S.C.R.

A his enemy just by walking and his being dragged or
being pulled would be only a natural thing, which the
witnesses supported. [Para 8) [569-G-H; 570-A-G]

1.3. Though the defence severely criticized the
8 prosecution on not collecting any evidence, it can be
understood as to why the other witnesses were not
examined. The enmity between the two parties was
known, there was also murders and counter murders.
Under such circumstances, if the witne_sses do not
C become available, it is not the fault of the investigating
agency. This is apart from the fact that the Investigating
Officer was not asked about the aspect of witnesses
being available. This Court does not, therefore, find fault ·
with the judgment of conviction recorded by the Sessions
Judge and the High Court. The argument that the
D evidence fell short of proof beyond the reasonable doubt
is not tenable. The prosecution proved its case to the hilt
and the Trial Court and the High Court were right in
convicting the appellants/accused. (Paras 9, 11 and 12)
[571-C-E-H; 572-A-B]
E
Ram Lakhan Singh & Ors. v. State of Uttar Pradesh 1977
(3) sec 268, distinguished.
Case Law Reference:

F 1977 (3) sec 268 distinguished Para 10
CRIMINAL AP PELLATE JURISDICTION : Criminal Appeal
Nos. 184 of 2005.

From the Judgment & Order dated 14.7.2004 of the High
G Court of Judicature at Allahabad, in Criminal Appeal No. 163
of 1980.

WITH

Crl. A. No. 364, 548 of 2005.
H
RAMESH AND ANR v. STATE OF U.P. 565

• Jaspal Singh, lmtiaz Ahmed, Naghma lmtiaz, Equity Lex
Associates, P.N. Puri, Dhiraj, Reeta Dewan Puri for the
A

Appellants.

Pramod Swarup, Shail Kumar Dwivedi, Manoj Kr. Dwivedi,
Vandana Mishra, Ashutosh Kr. Sharma (for Gunnam B
Venkateswara Rao) for the Respondent.

The Judgment of the Court was delivered by
" V.S. SIRPURKAR, J. 1. This judgment will dispose of
Criminal Appeal No. 184 of 2005, Criminal Appeal No. 364 of c
2005 and Criminal Appeal No. 548 of 2005. First mentioned
Appeal has been filed by Ramesh, original accused No. 2 (A-
2) and Ram Nath, original accused No. 5 (A-5), while the
second mentioned Appeal has been filed by Mani Ram, original
~· accused No. 3 (A-3). The last mentioned Appeal has been filed D
by Ram Kumar, original accused No. 1 (A-1). All of them were
convicted for the offences under Section 302 read with Section
149, 147 and 148 of the Indian Penal Code (hereinafter referred
to as "IPC" for short) by the lllrd Additional Sessions Judge,
Unnao. They were tried alongwith two other accused persons, E
namely, Swami Nath@ Swami Dayal, original accused No. 4
(A-4) and Ram Naresh, original accused No. 6 (A-6). Even
these two accused persons A-4 and A-6 were also convicted
alongwith the appellants herein, however, it is reported that
Swami Nath @ Swami Dayal (A-4) has not filed any appeal,
F
while Ram Naresh (A-6) is already dead. That le~ves us with
only the four accused persons.

2. All the six accused persons originally faced a charge
under Section 302 IPC. Appellants Ram Kumar (A-1), Mani
Ram (A-3) and Swami Dayal@ Swami Nath (A-4) were tried G
. ~
substantively for the pffence under Section 302 IPC on the
.. - allegation that they had committed murder of one Raj Kumar
(deceased) on 24.10.1978 at about 5 p.m. near a well located
to the south-east of the house of Pancham in Village Karia
Khera, Police Station Kotwali, District Unnao. They were also H
566 SUPREME COURT REPORTS (2009] 13 (ADDL.) S.C.R.

"
A alternatively charged with other accused for the offence under ..
Section 302 read with_ Section 149 IPC. Some accused
persons were also tried under Section 148 IPC and two of ..
them, namely, A-5 and A-6 were tried for the offence under
Section 147 IPC.
B
3. The deceased Raj Kumar, who was about 24 years old,
was the real brother of Prithvi Raj (PW-1 ), the complainant. They
had two other brothers and five sisters. One of the sister is
Daya Wati (PW-5), aged about 17 years at the time of the
incident. Ram Kumar (A-1) and Ram Nath (A-5) are the real
c brothers, while Ramesh (A-2) is the son of their cousin.
Excepting Man.i Ram (A-3), all the accused persons were from
a single family. There was some enmity between the family of
the accused and the family of the deceased. There were number
of murders. Ram Raj, who was one of the brothers of Prithvi
D Raj and Raj Kumar (deceased) was murdered on 12.6.1977.
In that murder case, Prithvi Raj (PW-1) had named 7 assailants,
out of whom one was Ram Naresh (A-6). In that case, deceased
Raj Kumar was a witness. In the murder case of Ram Raj, the
prosecution evidence was to begin from 6.11.1978, i.e., about
E 12 days after the incident, which took place on 24.10.1978. In
short, there is a strong motive of enmity in between the
accused party and the complainant party.
t-
4. It so happened that on the fateful day, i.e., 24.10.1978,
F Raj Kumar (deceased) went to his tubewell, which is at about
100-125 paces from his house and after watering the field, he
came back home at about 4.30 p.m., as there was no electric
current available. He again started for his tubewell and his sister
Daya Wati (PW-5) and his mother and wife of Prithvi Raj, i.e.,
G his sister-in-law also followed him. When Prithvi Raj came out
of his house, Prahlad (PW-4) met him. Prahlad had come to
the village to purchase the seeds. Two other persons also met
,. .
•·..:!

him there and they also started towards the tubewell. The
moment, they reached near the Neem tre~ situated at a
distance of 15 paces from the house of the deceased, all the
H .....
RAMESH AND ANR v. STATE OF U.P. 567
[V.S. SIRPURKAR, J.]

..... _.. accused accosted him, surrounded him and dragged him by A
pulling near the well upto a distance of 10- ~ 5 paces. Ram
Naresh (A-6) then exhorted that Raj Kumar (deceased) should
be murdered in the same manner in which his brother Ram Raj
was murdered, so that Raj Kumar may not appear as a witness.
Thereupon, Mani Ram (A-3) fired a shot from his country made B
pistol, which was followed by a second shot of fire from the
country made pistol of Swami Nath (A-4). Ramesh (A-2) put a
" ~ - cartridge into a country made pistol and gave it to Ram Kumar
,,-- - (A-1), who also fired a shot at Raj Kumar, due to which Raj
Kumar died on the spot. All the accused persons then ran C
away. Because of the injuries, blood started coming out and
the clothes of Raj Kumar were soaked. They included, in al!, 7
Exhibits. Within about 15 minutes, at about 5.15 p.m., Prithvi
Raj (PW-1) came back on his cycle from Village Dewara Kala,
where he had gone for doing his duty as Panchayat Sewak.
-J He found the dead body of Raj Kumar. He talked to his wife D
and mother and his sister Daya Wati (PW-5). Other witnesses,
namely, Prahlad (PW-4) and Rajendra Singh and Surendra
(both not examined by the prosecution) were also present there.
After knowing about the incident from the eye-witnesses, Prithvi
Raj (PW-1) himself wrote a First Information Report (FIR) E
Exhibit Ka-1 and went to Police Station Kotwali, situated at a
distance of about 10 km. from the place of the occurrence,
-1 where he lodged it at 6.30 p.m. On the basis of this written
report, check report Exhibit Ka-3 was prepared and the further
investigation started. In the FIR, all the 6 accused persons were F
named and the whole incident was also narrated. The matter
was investigated by D.P. Tiwari, S.I. (PW-6) and after the usual
investigation and recording the statements of the witnesses, as
also after holding the Inquest Panchanama and Spot
Observation Panchanama, the body was sent for post-mortem. G
"" _. After the completion of the investigation, the chargesheet came
to be filed. Dr. S.M. Tripathi (PW-2), who had performed the
autopsy, found five .injuries on the body of Raj Kumar
(deceased), three being the entry wounds and two being the
H
568 SUPREME COURT REPORTS (2009] 13 (ADDL.) S.C.R.

A exit wounds. He also confirmed that all the three injuries were
sufficient, in ordinary course of nature, to cause death.

5. Accused persons abjured guilt. Two eye-witnesses,
namely, Prahlad (PW-4) and Daya Wati (PW-5) were examined
by the prosecution. Prithvi Raj (PW-1) spoke about the FIR,
B while Dr. S.M. Tripathi (PW-2) spoke about the medical aspect. t
The only other relevant witness is D.P. Tiwari, PW-f>, who was
the Investigating Officer. The defence did not prevail and all the,-..._ •
six accused persons came to be convicted. The accused ' - ~
persons filed appeal before the High Court, however, their
C appeals failed and that is how the four accused out of the
original six accused persons are before us, challenging their
. conviction.

6. Before the High Court, the criticism levelled was that the
D prosecution stood on the basis of the interested witnesses like
Prahlad (PW-4) and Daya Wati (PW-5). The defence severally
criticized the non-examination of the other two witnesses,
namely, Rajendra Singh and Surendra, who were admittedly
present and also the other two ladies, namely, Nanhakki and
E Ram Piyari, who were claimed to be present in the FIR. It was
further urged before the High Court that the story of the FIR
having been recorded at 6.30 p.m. was a myth and in fact, the
FIR was ante-dated. All these arguments were repelled by the
High Court. The High Court came to the conclusion that the
F evidence of Prahlad (PW-4) and Daya Wati (PW-5) were
absolutely trustworthy and stood the acid test of cross-
examination. The High Court further held that there was enough
support in corroborating evidence, inasmuch as in Tue FIR itself,
names of all the accused persons alongwith the part played by
each of them was reflected. It was also held by the High Court
G that there was no possibility of ante-dating the FIR. The factum
of this murder was mentioned in the other FIR, wherein it was
complained that the complainants in this case have caused the
murder of one of the persons of the accused party and since
that FIR was already recorded by 7.45 p.m., there was no
H
RAMESH AND ANR v. STATE OF U.P. 569
[V.S. SIRPURKAR, J.}
.... k question of ante-dating the present FIR. The High Court also A
held that the medical evidence was enough to prove the guilt.
On this basis, the conviction came to be confirmed.

7. Before us, Shri Jaspal Singh, Learned Senior Counsel,
appearing on behalf of the appellants, who led the arguments B
and Shri P.N. Puri, Learned Counsel, who supported the
arguments of Shri Jaspal Singh, took us through the whole
evidence. Ordinarily, we would have refused to go into the
--'
"" evidence, however, in his inevitable style, Shri Jaspal Singh
persuaded us to see the evidence of the two eye-witnesses.
-c
'
Seeing the evidence, we are convinced that the eye-witnesses
c
are truthful and were rightly believed by the High Court. Shri
----~

' Jaspal Singh criticized the evidence of these two witnesses,
suggesting that the enmity between the parties should have
been held on the backdrop before accepting the evidence of
--4 these two witnesses. He is quite right, as the law on the subject D
is that evidence of the interested witness should be
appreciated, keeping that enmity in mind. We find that both the
Courts have, in a most balanced manner, appreciated the
evidence of these two witnesses. When we see the evidence,
it is seen that both the witnesses have given the graphical E
description of the whole incident.

8. It was tried to be suggested by Shri Jaspal Singh that
Prahlad (PW-4) had no business to be in the village and his
evidence is almost in the nature of a chance witness. The F
Learned Senior Counsel wondered that if this witness had
come to the village for purchasing the seeds, then he had no
business to go to the house of Raj Kumar (deceased) and
-, further to accompany him. It was also suggested by the
Learned Senior Counsel that ultimately he had never purchased G
....
the seeds, which was the object of his visit to the place. The
t
Learned Senior Counsel further urged tha~his version on the
dragging of Raj Kumar by the accused pe.rstins does not really
tally with the version .given by Daya Wati (PW-5). We have
H

.I...
I
570 SUPREME COURT REP_ORTS (2009] 13 (ADDL.) S.C.R.

A considered all these questions. Merely because Prahlad (PW-
4) was not frorn the same village, it cannot be said that he had
no business in the village. It has come in the evidence clearly
that the distance between the village of Prahlad (PW-4) and the
village where the incident took place is hardly about 1.5 km.
s Therefore, his coming to the village for purchasing the s·eeds
cannot be viewed with a suspicion. It is also not necessary that
Prahlad (PW-4) should have straightaway gone only to the shop
of the seeds and purchased the seeds. After all, Prahlad (PW-
4) knew the deceased Raj Kumar and in fact, Prahlad (PW-4)
c was cross-examined in that direction. If Prahlad (PW-4) already
knew deceased Raj Kumar and if he went just to visit him, we
do not think, this by itself, would be reason to disbelieve his
testimony. In villages, the people do normally go to each other's
house. Again the criticism that Prahlad (PW-4) had no business
D to go and accompany Raj Kumar to his field, is also of no
consequence, as Prahlad (PW-4) might have walked alongwith
Raj Kumar hardly for 20-25 paces. In fact, the distance between
the house of Raj Kumar and his tubewell is hardly about 100-
125 paces, which has come jn the evidence. Therefore, even
E if Prahlad (PW-4) walked alongwith deceased,' that by itself,
does not make his version suspicious in any manner. We have
seen the cross-examination. The cross-examination is
lacklustre and nothing has been brought in the same. The
Learned Senior Counsel tried to compare the evidence of
Prahlad (PW-4) with evidence of Daya Wati (PW-5) and
F pointed out that the theory of dragging was not supported in
the evidence of Daya Wati (PW-5). We have seen the original
version (in Hindi), which convinces us that even Daya Wati (PW-
5) has said that the deceased was actually pulled and pushed
to the place, where he was actually fired upon. Even otherwise,
G ordinarily the deceased would not have gone alnogwith his
enemy just by walking and his being dragged or being pulled
would be only a natural thing, which the witnesses supported.
There is one mistake on the question of Ramesh (A-2) loading
the pistol with cartridges and giving it to the other accused. That
H
RAMESH AND ANR v. STATE OF U.P. 571
[V.S. SIRPURKAR, J.]
was obviously a mistake, which has been explained by the Trial A
' Court as in the cross-examination of Daya Wati (PW-5), it has
very specifically come that it was Ram Kumar (A-1) who fired.
Therefore, the confusion caused was also cleared. Some minor
contradictions were pointed out by Shri Jaspal Singh, the
Learned Senior Counsel, which in our opinion, have been rightly B
disbelieved by the Trial Court and the High Court. After all, the
contradictions were bound to be there and in fact, those
contradictions have gone to support the truthfulness of the
witness.

9. Lastly, Shri Jaspal Singh, the Learned Senior Counsel
c
for the appellants pointed out that there were about 12
witnesses. It was admitted by both the eye-witnesses that there
were about 10-12 persons, who were watching the incident.
Learned Senior Counsel severely criticized the prosecution on
not collecting any evidence. Now, it can be understood as to D
why the other witnesses were not examined. The enmity
between the two parties was known, there was also murders
and counter murders. Under such circumstances, if the
witnesses do not become available, it is not the fault of the
investigating agency. This is apart from the fact that the E
Investigating Officer was not asked about the aspect of
witnesses being available. We do not, therefore, find fault with
the judgment of conviction recorded by the Sessions Judge and
1
the High Court.
F
10. Reliance was placed by Shri Jaspal Singh, Learned
Senior Counsel on the law laid down by this Court in Ram
Lakhan Singh & Ors. vs. State of Uttar Pradesh reported in
1977 (3) SCC 268, more particularly, on Para 24-31. We do
not think that the case is relevant, as we are convinced that on G
the facts of this case, the defence has no scope to stand.
~ -+
11. Shri Puri, Learned Counsel for the appellants also
supported the argument and tried to contend before us that the
evidence fell short of proof beyond the reasonable doubt. We
H
572 SUPREME COURT REPORTS (2009] 13 (ADDL.) S.C.R.

A do not think so.

12. For the reasons given, we are of the firm opinion that
the prosecution proved its case to the hilt and the Trial Court
and the High Court were right in convicting the appellants/
accused. In that view, all the appeals are dismissed.
8
B.B.B. Appeals dismissed.