REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1840 of 2008

Onkar & Anr.              …Appellants

Versus

State of U.P.                     …Respondent

J U D G M E N T

Dr. B.S. CHAUHAN, J.

1. This appeal has been preferred against the judgment and order  

dated 23.8.2007 passed by the High Court of Allahabad in Criminal  

Appeal No. 1096 of 1982, qua the appellants by which the judgment  

and order of the Trial Court dated 16.4.1982 in Sessions Trial No.  

277 of 1980, of their conviction under Section 302/149; 307 read  

with  Section  149  and  Section  452  of  Indian  Penal  Code,  1860  

(hereinafter called ‘IPC’) has been upheld and sentence awarded by  

the Trial Court for life imprisonment for the offence under Section  

302/149;  seven years  for  the offence under  Section 307/149;  and

three years’ rigorous imprisonment under Section 452 IPC has been  

maintained.  

2. Facts  and  circumstances  giving  rise  to  this  appeal  are  as  

under:

A. An FIR was filed on 23.3.1980 at 2.50 A.M. with the Police  

Station Harduwaganj, District Aligarh that on 22-23/3/1980 at about  

12 O’clock, Jalsur (PW.2) – complainant and his Uncle Onkar Singh  

(deceased) were sleeping on the roof of their house in their village  

Kidhara.   The  appellants  came  to  the  house  of  complainant  

alongwith  other  accused persons.  One Jagdish who was having a  

shop in the outer room of the complainant’s house, woke up after  

hearing  the  sound  of  the  movement  of  appellants  and  accused  

persons and raised alarm and took to his heels.  Jalsur (PW.2) and  

his  uncle  Onkar  Singh  (deceased)  also  woke  up.   Onkar  Singh  

(deceased)  climbed down from the roof towards Chabutara  while  

Jalsur (PW.2) jumped in the adjoining house of his uncle Bahori and  

came out in the open and set fire to a “chappar” in front of his own  

house.  It was in the light of the fire made on account of burning of  

“Chappar”, that Jalsur (PW.2) saw the accused Bira, Tara, Onkar,  

Rati  Ram  and  some  7-8  unknown  persons.  The  appellants  were  

armed with country made pistols and other assailants were armed  

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with lathi,   bhala and other  lethal  weapons.  A scuffle  took place  

between the assailants and Onkar Singh (deceased) and he received  

a  gun shot  injury on his  chest  and died.   Some of the  assailants  

climbed down into the house of  the informant and tried  to break  

open  the  doors  of  the  rooms  but  on  their  failure  to  do  so,  they  

opened  fire  on  the  doors  and  some  of  them  entered  the  rooms  

through ventilators. The firing caused injuries to the informant’s son  

Chandra Bose and daughter Tarwati. On seeing pressure mounting,  

the  culprits  pushed  the  deceased  (Onkar)  into  the  fire  of  the  

“Chappar” which had been  set ablaze by the informant.   

B. On the basis of the said FIR, investigation commenced and  

I.O.  N.P.  Singh  (PW.6)  came  at  the  place  of  occurrence  and  

collected seven empty shells of 12 bore cartridges alleged to have  

been fired by  the  miscreants.   He also  recorded the statement  of  

witnesses.  Site plan was prepared. Blood stained earth and  sample  

of ash  of burnt Chappar was collected.  The injured persons were  

sent for medical  examination and treatment.  Dead body of Onkar  

Singh was sent for post-mortem.  The Investigating Officer arrested  

Mohd.  Shafi,  Ahmad  Syeed  and  Suresh  on  25.3.1980  and  other  

accused persons subsequently. The Test Identification parade of four  

accused, namely, Omveer, Suresh, Ahmad Sayeed, and Mohd. Shafi  

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was conducted and the accused were  identified by the  witnesses,  

namely,  Roshan  Singh,  Shishu  Pal,  Hukam  Singh  and  Jalsur  on  

17.5.1980.   The  Investigating  Officer  filed  chargesheet  dated  

14.1.1981  against  7  accused  persons,  namely,  Bira,  Tara,  Onkar,  

Mohd. Shafi, Omveer, Ahmad Sayeed and Suresh.  

C. The Trial Court framed the charges on 14.1.1981 against all  

the 7 accused persons under Sections 147, 302/149, 307/149 and 452  

IPC.  So  far  as   the  present  appellants  and  accused  Bira  are  

concerned,  an  additional  charge  was  framed  against  them  under  

Section 148 IPC.  To prove the case, prosecution examined large  

number of witnesses including Jalsur (PW.2), Shishu Pal (PW.3) and  

Bani Singh (PW.4) as eye-witnesses of the occurrence.

D. The accused persons, namely, Bira, Tara, Onkar and Omveer  

when  examined  under  Section  313  of  the  Code  of  Criminal  

Procedure (hereinafter  called Cr.P.C.)  took the plea that  they had  

falsely been implicated because of their previous enmity as 5-6 years  

prior to the incident, an attempt was made on the life of Shishupal,  

uncle  of  the  complainant  Jalsur  (PW.2)  and in  that  case  accused  

Tara, his brother Mahabir and father Munshi  faced trial  and stood  

convicted under Section 307 IPC and they served the sentence.  It  

was further submitted that Tara, Bira and Onkar were closely related  

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to each other.  In respect of another incident, Jalsur (PW.2) had filed  

a complaint against Tara and Mahabir under Section 395 IPC but the  

said case ended in acquittal.   The other accused persons took the  

defence that they had enmity with the police and had falsely been  

implicated in the case.

E. After appreciating the evidence on record and considering all  

other  facts  and  circumstances  of  the  case,  the  Trial  Court  vide  

judgment  and  order  dated  16.4.1982  convicted  all  the  7  accused  

persons and awarded the sentence as mentioned hereinabove in S.T.  

Case  No.277  of  1980.   Aggrieved,  all  the  7  convicts   preferred  

Criminal  Appeal  No.1096  of  1982  before  the  High  Court  of  

Allahabad.

F.       During the pendency of the said appeal, Omveer, Ahmad  

Sayeed and Suresh died and thus, their appeal stood abated. At the  

time of hearing the appeal, it stood established that Bira was a child  

on  the  date  of  occurrence  and  therefore,  his  conviction  was  

maintained  but  sentence  was  set  aside  giving  benefit  under  the  

provisions  of  Section  2(4)  of  the  U.P.  Children  Act,  1951.   The  

appeal of remaining three convicts, namely, Tara, Onkar and Mohd.  

Shafi stood dismissed vide impugned judgment. Mohd. Shafi did not  

prefer any appeal.   

Hence, this appeal only by two convicts.

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3. Shri S.B. Upadhyay, learned Senior counsel appearing for the  

appellants  has submitted  that  injured witnesses,  namely,  Tarawati  

and Chandra Bose have not been examined. Similarly, independent  

eye-witnesses,  namely,  Roshan  Singh  and  Hukum  Singh  whose  

presence at the scene of occurrence had been witnessed by Jalsur  

(PW.2) himself were not examined.  Jagdish who had raised hue and  

cry immediately after hearing the sound of coming of the accused  

persons on the spot has also not been examined. Only close relatives  

of  Onkar  Singh  (deceased)  have  been  examined.   Therefore,  the  

prosecution withheld  the material evidence in its possession.  In the  

facts and circumstances of the case, the provisions of Section 149  

IPC were not attracted. The prosecution miserably failed to prove  

that  there  was  unlawful  assembly  constituted  for  the  purpose  of  

executing a common object.   The prosecution case itself had been  

that  the  prime  object  was  to  commit  dacoity  and  not  murder  of  

Onkar Singh (deceased).  In the deposition, Jalsur (PW.2) had made  

a statement in the court that Rati Ram was involved in the killing of  

Onkar Singh (deceased) and his name also finds place in the FIR  

lodged by Jalsur (PW.2) but no chargesheet has been filed against  

him.  In view of the above, the appeal deserves to be allowed.

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4. Per contra, Shri D.K. Goswami, learned counsel appearing for  

the State  has vehemently opposed the appeal contending that the  

FIR had promptly been lodged within a period of 3 hours after mid-

night though the police station was at a distance of 3 miles from the  

place of occurrence.   The appellants  had been named in the FIR.  

Roles attributed to each of them had been explained.  Motive had  

also been mentioned.   Injuries  suffered by Tarawati  and Chandra  

Bose had also been given.  Law does not proscribe reliance upon the  

evidence  of  closely  related  witnesses.   However,  it  requires  that  

evidence  of  such  witnesses  must  be  appreciated  with  care  and  

caution.  Once the evidence is found reliable/trustworthy, it cannot  

be discarded merely on the ground that the witness has been closely  

related  to  the  victim.   The  injuries  found  on  the  person  of  the  

deceased  as well as on Tarawati, Chandra Bose and Mohd. Shafi  

corroborate the case of the prosecution and in such a fact-situation,  

the provisions of Section 149 IPC have rightly been applied.  The  

issue of non-examination of the injured witnesses, namely, Tarawati  

and  Chandra  Bose  and  of  eye-witnesses,  namely,  Roshan  Singh,  

Hukum Singh  and  Jagdish  has  not  been  put  to  the  Investigating  

Officer  in  cross-examination  who  could  have  furnished   the  

explanation for their  non-examination.   Thus,  the issue cannot be  

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raised first time in appeal before this Court. The appeal lacks merit  

and is liable to be dismissed.  

5. We have considered the rival submissions made by learned  

counsel for the parties and perused the record.  

6. Before we enter into the merits of the case, it may be relevant  

to refer to the injuries caused to the victims.  

(a) The  post  mortem  examination  of  the  dead  body  of  Onkar  

Singh,  son of  Sher Singh,  was  conducted by Dr.  Pradeep Kumar  

(P.W.7) on 23.3.1980 at about 5.15 a.m. and he found following ante  

mortem injuries on his person:-  

1. Gun shot wound of entry of left  nipple 1” x 1” x chest  cavity deep, margins inverted, blackening and tattooing present  around the wound part of lung coming out of the wound.  

2. Abrasion 3” x l" on the top of left shoulder.  

3. Abrasion 1" x ½ on the right elbow.  

4. Abrasion 2" x l" on the right iliac spine region.  

5. Abrasion 1 ½ “x ½” on left iliac spine region.  

6. Abrasion 3 “x 1” on upper part of right leg.  

7. Abrasion ¼ “x ¼” on middle part of left leg.  

8. Abrasion 2" x l" on the right side of back.  

9. Superficial burn on left side of chest and abdomen.   

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On the internal examination, 3rd, 4th, 5th, 6th, 7th, ribs on the left  

side were found fractured. In the right lung 800 ml of dark blood and  

12 pellets were recovered. Left lung was lacerated and 8 pieces of  

wadding were recovered. In large intestine gases and faecal matters  

were found.  In the opinion of the doctor, death had occurred due to  

shock and haemorrhage due to ante mortem injuries and duration of  

death was ¾ day to one day.         

(b) Dr. D.P. Singh (P.W.1) of PHC Harduwaganj had examined  

the injuries of Tarwati, daughter of Jalsur (PW.2) on  23.3.1980 at  

1.15 p.m. and following injuries were found by him:-  

1. Lacerated circular pellet wound 1/8" x 1/8”' x muscle deep on  the anterior aspect of scalp exactly in the midline of head.

2. Lacerated circular wound 1/8” x 1/8” x  muscle deep on the  left side of scalp away from the midline and 2 ¾” above the left  eye brow.  

3. Lacerated circular wound 1/8” x 1/8”  x muscle deep on the  right of scalp, 1” behind the injury No.3.  

 The injuries,  in the opinion of the doctor,  were simple and  

were caused by fire arm and it was half day old.

(c) Chandra  Bose,  son of  Jalsur  (PW.2)  was  examined  by  Dr.  

D.P.  Singh (PW.1)  on 23.3.1980 at  1.20 p.m. and the following  

injuries were found by him:-  

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1. Lacerated circular wound 1/8" x 1/8" x muscle deep on the  right  side  of  face,  1  ½”  in  front  of  the  lower  angle  of  right  mandible.  

2.  Lacerated circular wound 1/8" x 1/8" x muscle deep on  the right side of scalp. 4 ½”  above the base of right ear and 1 ½”  away from mid line.

3. Lacerated circular wound 1/8" x 1/8" x muscle deep on the  left side of scalp. ½”  away from mid line and 2 ½ " above the  left eye brow.  

4. Lacerated circular wound 1/8" x 1/8" x muscle deep on the  left side of scalp 1" behind the injury no.3.  

All the injuries were simple in nature and were caused by fire  

arm and their duration was about half a day old.  

(d) Dr. D.P. Singh (PW.1) examined the injuries of Mohd. Shafi  

on 26.3.1980 at 11.15 a.m.  and the following injuries were found on  

his person:-  

1. Circular wound 1/8" x 1/8" x muscle deep on the front aspect  of right forearm 4" below the level of right elbow joint.  

2. Multiple circular wound 1/8" x 1/8" x muscle deep on the front  and lateral aspect of right upper arm 12 in numbers in an area 8"  x 5" between the shoulder and elbow joint.   3. Three circular wounds 1/8" x 1/8" x muscle deep each in an  area of 3 ½ x 2” on the right shoulder joint.   4.  Multiple  circular  wounds 1 /8"  x 1/8"  x muscle  deep,  5  in  numbers, extending in a linear fashion starting from 3 ½”  above  the right nipple to the lower part of 9th rib at a place 6 ½” away  from mid line of back.  

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In the opinion of the doctor, all the injuries were simple and  

were caused by fire arm. Duration of these injures was found to be 3  

½ days which is corresponding to the date of incident.  

7. The prosecution has examined 3 eye-witnesses.  According to  

Jalsur  (PW.2),  the  victims’  side  had  earlier  filed  criminal  cases  

against some of the accused persons.  In one case, they had been  

convicted and in another case they had been acquitted.  In so far as  

this incident is concerned, Jalsur (PW.2) has fully supported the case  

of  the  prosecution.   This  witness  deposed  that  accused  Bira  was  

having a gun and the present appellants were having country made  

pistols and the other accused were armed with lathi and ballom  etc.  

In order to save himself from the assailants, Jalsur (PW.2) jumped in  

the house of his uncle and Onkar Singh climbed down from the roof.  

The accused had a scuffle with Onkar Singh who suffered a gun shot  

injury.   The accused also tried to break the door  of  the room of  

Onkar Singh and when the door was not broken, they fired the shot  

at the door and bullets from the ventilation of the home due to which  

Chandra Bose and Tarawati, son and daughter   of  Jalsur (PW.2)  

suffered  fire  injuries.   In  this  incident,   Mohd. Shafi  also got  

injured.  His evidence is totally corroborated  by Shishu Pal (PW.3)  

and Bani Singh (PW.4).   

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It is a settled legal proposition that evidence of closely  

related  witnesses  is  required  to  be  carefully  scrutinised  and  

appreciated  before  resting  of  conclusion  the  convict/accused  in  a  

given case.   In case,  the evidence  has a ring of truth,  is cogent,  

credible and trustworthy it can be relied upon. (Vide:  Himanshu v.  

State (NCT of Delhi), (2011) 2 SCC 36; and Ranjit Singh & Ors.  

v. State of Madhya Pradesh, (2011) 4 SCC 336).

There is nothing on record to show that at the time of  

cross-examination of the Investigating Officer (PW.6),  any of  the  

accused had put him a question as to why the other witnesses have  

not been examined.

8. Injuries reports so referred to hereinabove stood proved by Dr.  

D.P. Singh (PW.1) and Dr. Pradeep Kumar (PW.7) in the court and  

they corroborate the prosecution version.  In spite of the fact that the  

accused Mohd.  Shafi  got  injured  but  no grievance  has  ever  been  

raised by him in this regard.  The Trial Court has rightly taken note  

of it and reached the correct conclusion that it supports the case of  

the  prosecution  and establish  the  presence  of  Mohd.  Shafi  at  the  

place of occurrence and he participated in the crime.  Mohd. Shafi  

himself could not explain as under what circumstances such injuries  

have been caused to him.

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9. The courts below have reached the correct conclusion that it is  

highly improbable that the witnesses would screen and spare the real  

assailants and falsely enroped the appellants and others only because  

of old enmity.  Had it been so, there could have been no reason to  

involve at least four other accused persons in the crime, particularly,  

Mohd. Shafi, Suresh, Ahmad Sayeed and Omveer.  

Admittedly, he lodged the FIR most promptly within a  

period of 3 hours of the incident at 2.50 A.M.  though the police  

station was at a distance of 3 miles from the place of occurrence.  So  

far as the present appellants are concerned, they have specifically  

been named.

              The other co-accused who were not the residents of the  

village  where  the  offence  has  been  committed,  had  been  duly  

identified in Test Identification Parade as well as in court by all the  

three eye-witnesses.

10. We do not  find any force in the submission made by Shri  

Upadhyay,  learned  Senior  counsel  that  in  the  facts  and  

circumstances of the case provisions of Section 149 IPC were not  

attracted, for the reason, that this court has been very cautious in the  

catena of judgments that where general allegations are made against  

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a large number of persons the court would categorically scrutinise  

the evidence and hesitate to convict the large number of persons if  

the evidence available on record is vague.   It is obligatory on the  

part of the court to examine that if the offence committed is not in  

direct  prosecution  of  the  common  object,  it  may  yet  fall  under  

second part of Section 149 IPC, which states that if the offence was  

such  as  the  members  knew was  likely  to  be  committed.  Further  

inference has to be drawn as to the number of persons involved in  

the crime; how many of them were merely passive witnesses; what  

arms and weapons they were carrying alongwith them.  Number and  

nature  of  injuries  is  also  relevant  to  be  considered.   “Common  

object” may also be developed at the time of incident.  

(See :  Ramachandran & Ors. v. State of Kerala (2011) 9 SCC  

257).   

11. In Chandra Bihari Gautam & Ors. v. State of Bihar,  AIR  

2002 SC 1836, this Court while dealing with a similar case held as  

under:

“Section 149 has two parts. First part deals with the   commission of an offence by a member of unlawful   assembly  in  prosecution  of  the  common object  of   that  assembly  and the  second part  deals  with  the   liability  of  the  members  of  the  unlawful  assembly   who knew that an offence was likely to be committed   in  prosecution  of  the  object  for  which  they  had   assembled.  Even  if  the  common  object  of  the   

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unlawful  assembly  is  stated  to  be  apprehending   Nawlesh  Singh  only,  the  fact  that  the  accused  persons had attacked the house of the complainant   at the dead of the night and were armed with deadly   weapons including the guns, and used petrol bombs   proves  beyond  doubt  that  they  knew  that  in  prosecution  of  the  alleged  initial  common  object   murders were likely to be committed. The knowledge   of  the  consequential  action  in  furtherance  of  the   initial  common  object  is  sufficient  to  attract  the   applicability of Section 149 for holding the members   of the unlawful assembly guilty for the commission   of the offence by any member of such assembly. In   this  case  the  appellants,  along  with  others,  have   been proved to have formed unlawful assembly, the   common object of which was to commit murder and  arson and in prosecution of the said common object   they raided the house of the informant armed with   guns  and  committed  offence.  The  Courts  below  have,  therefore,  rightly  held  that  the  accused  persons formed an unlawful assembly, the common  object  of  which  was  to  commit  murder  of  the  informant  and  his  family  members  and  in   prosecution of the said common object six persons  were  killed.  The  appellants  were  also  proved  to   have hired the services of some extremists  for the  purposes  of  eliminating  the  family  of  the  complainant.”     

(See also: Ramesh v. State of Haryana, AIR 2011 SC 169)

12. The  witnesses  have  deposed  that  not  a  single  article  was  

looted nor any attempt had been made to commit dacoity, rather it  

has  been  specifically  stated  that  all  the  assailants/miscreants  

declared that no one would be left alive and had been exhorting one  

another  to  eliminate  all.   All  the  assailants  came  together  and  

participated in the crime in which Onkar Singh was killed, Tarawati  

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and Chandra Bose were injured.  The assailants tried to break open  

the door of the house but could not succeed, thus they fired from the  

ventilator and that is why Tarawati and Chandra Bose got injured.  

After commission of the offence a large number of persons gathered  

at the place of occurrence.  The assailants ran away.  The offence  

was  committed  at  mid-night.   Therefore,  after  reading  the  entire  

evidence  collectively  inference  can  safely  be  drawn  that  the  

assailants had an object to commit murder of persons on the victims’  

side and they participated in the crime.  

13. Thus, the graveness of charges against the appellants that they  

in concert with other accused to achieve a common object entered  

into the house of the complainant stood proved.  

14. In view of the above, we do not find any force in the appeal.  

Facts and circumstances of the case do not warrant any interference  

in the matter. The appeal lacks merit and is, accordingly, dismissed.

..…………………………J. (Dr. B.S. CHAUHAN)

..……………………… …J.

(T.S. THAKUR) New Delhi, January 18, 2012                                

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