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NON-REPORTABLE  IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1523 OF 2008

Ram Vishambhar & Ors. ... Appellant(s) Versus

State of U.P. Through Home Secretary ... Respondent(s)

WITH

CRIMINAL APPEAL NO. 1524 OF 2008

J U D G M E N T

RANJAN GOGOI, J.

Both these appeals arise out of the common judgment  

and  order  dated  23.8.2007  passed  by  the  High  Court  of  

Allahabad  whereby  the  conviction of  the  appellants,  (6  in  

number)  inter  alia,  under  Section 302 of  the  Indian  Penal  

Code (hereinafter for short “the Code”) has been affirmed.  

Each  of  the  accused-appellants  in  the  two appeals  under  

consideration  have  been  sentenced  to  undergo  RI  for  life

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besides  to  serve  out  further  periods  of  imprisonment  for  

commission  of  lesser  offence  details  of  which  are  being  

noticed hereinafter.   

2. The prosecution case in short  is that accused Jagdeo,  

Sahdeo, Jagroop and Manni Lal are the sons of accused Ram  

Vishambhar whereas accused Raj Bahadur is related to the  

accused Ram Vishambhar.  On the other hand, complainant  

Bhagwat Prasad  (PW-1) is the brother of one Rameshwar  

Prasad whereas Ram Sanehi (injured witness No. 2),  Girija  

Shankar  (PW-3)  and  Ram  Khilawan  are  the  sons  of  

Rameshwar  Prasad.   Sarju  Prasad  (PW-4)  and  Mahendra  

Kumar  are  the  sons  of  Ram  Khilawan  while  Km.  Sheela  

(injured) and Km. Gayatri Devi (deceased) are the daughters  

of Ram Khilawan.   

The relationship between the two families was strained  

and there were disputes between them.  According to the  

prosecution,  on  20.3.1981  at  about  10.30  p.m.  while  Holi  

procession  was  taken  out  in  the  village  hot  words  were  

exchanged between accused Raj Bahadur and Sarju Prasad  

(PW-4).  When the procession had reached near the house of  

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accused Raj Bahadur, allegedly, the aforesaid accused had  

threatened PW-4 Sarju Prasad with a country made pistol.  

Thereupon, Sarju Prasad fled to his house and complained to  

Bhagwat Prasad (PW-1), Rameshwar Prasad, Girija Shankar  

(PW-3), Ram Sanehi (PW-2) and Mahendra Kumar that  the  

accused Raj Bahadur had threatened him.  According to the  

prosecution, the accused persons then arrived at the house  

of the complainant.  While accused Raj Bahadur and Manni  

Lal were holding Tamanchas (country made pistols), the rest  

of the accused had come armed with lathis.  Thereafter, all  

the accused started abusing and beating Girija Shankar, Ram  

Sanehi,  Sarju  and  Mahendra  Kumar  with  lathis.   As  some  

resistance  was  offered  by  the  party  of  the  complainant,  

particularly Ram Sanehi (PW-2), accused Manni Lal fired at  

him  as  a  result  of  which  Ram  Sanehi  sustained  injuries.  

According to the prosecution accused Raj Bahadur also fired  

at PW-4 Sarju Prasad.  However, instead of Sarju Prasad,  Km.  

Sheela was hit as a result of which she sustained injuries.  

Accused Raj Bahadur is reported to have fired a second shot  

at Sarju Prasad which once again missed the target and hit  

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Gayatri  Devi  who  died  instantaneously.  According  to  the  

prosecution,  the  accused  persons  thereafter  entered  the  

house  of  accused  Ram  Vishambhar  and  firing  was  heard  

inside the house of the aforesaid accused.

3. PW-1 Bhagwat Prasad dictated the written report (Exh.  

Ka-1) which was scribed by one Ram Kishore and the same  

was submitted in the Police Station Jafarganj at about 4.30  

a.m. on 21.3.1981.  On the basis of the said report the FIR  

(Exh. Ka-3) was registered and investigation was undertaken  

by  one  Jai  Karan  Singh  (PW-8)  who  was  posted  as  S.O.  

Jafarganj  Police  Station.   Proceeding  to  the  place  of  

occurrence PW-8 found the dead body of Gayatri Devi lying  

at the door of house of Rameshwar Prasad. Inquest was held  

and the dead body was sent for postmortem examination.  

PW-8 also found injuries on the person of Ram Sanehi, Km.  

Sheela, Sarju Prasad and Mahendra Kumar who were sent for  

medical examination which was conducted on 21.3.1981 and  

22.3.1981.  PW-3 Girija Shankar, who also sustained injuries  

in  the  incident,  was also sent  for  medical  examination on  

24.3.1981.   Thereafter,  on  completion  of  investigation,  

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chargesheet was submitted against all the accused persons  

under Sections 147, 148, 149, 307 and 302 IPC.  The offences  

alleged against the accused being exclusively triable  by the  

Court of Sessions, the case was committed to the Court of  

the learned Sessions Judge,  Fatehpur who framed charges  

against  the  accused  appellants  under  the  aforesaid  

provisions of the Penal Code.  As the accused persons denied  

the  charges  and  claimed  to  be  tried,  the  prosecution  

examined  ten  witnesses  in  support  of  its  case  besides  

exhibiting  several  documents.   Four  witnesses  were  

examined on behalf of the accused and two witnesses, i.e.,  

Budh Behari Pandey and Dhani Ram Yadav were examined  

as Court witnesses.  Thereafter at the conclusion of the trial  

while the accused Raj Bahadur was convicted under Section  

302 read with Section 301 IPC, the remaining 5 accused were  

convicted under the aforesaid section with the aid of Section  

149 IPC.  Additionally, accused Raj Bahadur and Manni Lal  

were convicted under Section 148 and 307 as well as under  

Section 323 of the Code and the remaining co-accused, i.e.  

Ram  Vishambhar,  Jagdeo,  Jagroop  and  Sahdeo  were  

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convicted under Section 147 and also Section 323 and 307  

IPC read with Section 149 IPC.  The sentences imposed on  

the accused-appellants for the lesser offences need not be  

specifically noticed as all  such sentences were directed to  

run concurrently alongwith the period of life imprisonment  

imposed on each of the accused persons under Section 302  

IPC.  Aggrieved the two appeals in question have been filed  

by the accused appellants.

4. We  have  heard  Mr.  Deepak  Goel,  Advocate  for  the  

appellants in Crl. Appeal No. 1523/2008, Mr. J.C. Gupta, Sr.  

Advocate for the appellants in Crl. Appeal No. 1524/2008 and  

Mr. S.R. Singh, Sr. Advocate for the State of Uttar Pradesh.   

5. Before proceeding any further as the defence had put  

up a specific version of the incident and, in fact, a complaint  

in this regard was lodged before the police station (Exh. Ka-

11)  by accused Ram Vishambhar,  the said defence of the  

accused may be noticed in some details.   

According  to  the  accused  the  complainant  and  his  

family  members  had celebrated  Holi  in  the  plot  No.  1290  

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belonging to the accused Ram Vishambhar. When the said  

accused  protested,  PW-4  Sarju  and  others  had  started  

beating him.  Seeing the assault committed on their father  

accused Jagdeo, Manni Lal and Sahdeo arrived at the spot  

and warned PW-4 Sarju and others.  Thereupon, according to  

the accused, PW-2 Ram Sanehi and PW-4 Sarju fired from the  

guns  that  they  were  carrying.   Further  more,  PW-3  Girija  

Shankar was also armed with a gun which, however, fell on  

the  ground.   The  aforesaid  gun  was  picked  up  by  some  

relation of  the  accused  who fired  two shots  towards Ram  

Sanehi and others, in defence.  According to the accused,  

PW-2 and PW-4 had fired 3 more shots in the course of the  

incident and the same had hit the deceased Gayatri Devi as  

well as her sister Sheela who sustained injuries.

6. The argument advanced by the learned counsel for the  

appellants  has  delved  upon  the  injuries  sustained  by  the  

accused  Jagroop,  Sahdeo  and  Manni  Lal,  which  though  

proved by the evidence of DW-2, had not been explained in  

any  manner  by  the  prosecution.   Learned  counsel  has  

submitted  that  the  defence  by  examining  DW-3  Jagdev  

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Prasad has proved that the accused Jagdeo was not present  

at the place of occurrence. It is also urged that the evidence  

of DW-4 Ram Karan clearly discloses that it is the party of the  

complainant who were aggressors and who had fired upon  

the  accused  first.  Learned  counsel  has  pointed  out  that  

though there was some firing by the accused the same was  

in  self  defence  and  in  any  event  the  testimony  of  DW-4  

clearly  establishes that  it  is  the  shots fired by PW-2 Ram  

Sanehi and PW-4 Sarju Prasad which had accidently injured  

Km.  Sheela  and  had  also  hit  deceased  Gayatri  who  

succumbed  to  her  injuries.  The  evidence  adduced  by  the  

witnesses examined on behalf of the accused, according to  

learned counsel, has not been shaken or discredited in any  

manner in the cross-examination. Coupled with the injuries  

suffered by the accused for which there is no explanation  

forthcoming the defence version is eminently acceptable. In  

any case the  said version casts considerable doubt on the  

prosecution  case.   Learned  counsel  has  further  submitted  

that  the injuries sustained by the accused could not have  

been self-inflicted inasmuch as the accused were arrested  

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immediately after the incident and their medical examination  

was conducted while they were in custody.  Pointing to the  

previous  enmity  between  the  two  families  and  the  free  

exchange of assault and use of fire arms by either parties, it  

is  submitted  that  no  case  for  invoking  the  liability  under  

Section 302 of Penal Code is made out so as to warrant the  

conviction of the accused-appellants.  In any case, according  

to learned counsel, Section 149 IPC will have no application  

for the purpose of determination of the liability of any of the  

accused in the present case.

7. Opposing  the  contentions  advanced  on  behalf  of  the  

appellants, the learned State counsel has submitted that the  

prosecution witnesses, particularly the injured eyewitnesses,  

have given a consistent version of the occurrence and the  

precise  and  specific  role  of  each  of  the  accused.  No  

inconsistency, muchless any contradiction, is discernible.  On  

the other hand, according to the learned State counsel, the  

defence  version  is  highly  improbable.   In  the  complaint  

lodged by accused Ram Vishambhar (Exh. Ka-11) there is no  

mention  of  the  injuries  sustained  by  any  of  the  accused.  

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Apart from the aforesaid vital omission learned counsel has  

pointed out the inconsistency between the version as stated  

in  Exh.  Ka-11  and  the  version  narrated  by  accused  Ram  

Vishambhar  in  his  statement  recorded  under  Section  313  

Cr.P.C. as regards the place of occurrence. It is also pointed  

out  that  the  incident  took  place  in  the  house  of  the  

complainant where the dead body of Gayatri Devi was found  

lying and not as claimed by accused Vishambhar either in  

the FIR (Ex-Ka-11) or in his statement recorded under Section  

313  Cr.P.C.  The  above,  according  to  the  learned  counsel,  

would go to show the utter falsity of the claim of the accused.  

Insofar as the injuries on the accused are concerned, learned  

counsel  has  pointed  out  that  such  injuries  are  simple  in  

nature.  Furthermore, the possibility of the said injuries being  

self-inflicted cannot be ruled out inasmuch as according to  

the prosecution witnesses a gun shot was heard from the  

inside the house of the accused Ram Vishambhar. It is also  

contended that the injuries sustained by the accused being  

simple, absence of any explanation therefor will  not erode  

the credibility of the prosecution version.

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8. Five witnesses to the alleged crime were examined by  

the prosecution out of which PW-1 Bhagwat Prasad is the first  

informant who had lodged the FIR and PW-5 Rang Pal is an  

independent witness. PW-2 Ram Sanehi, PW-3 Girija Shankar  

and PW-4 Sarju Prasad are the injured eye witnesses. The  

version of the aforesaid five witnesses is in substance the  

same.  According to the  aforesaid  eye witnesses while  the  

Holi Dahan procession was proceeding and had reached the  

house  of  accused  Raj  Bahadur,  the  said  accused  started  

abusing PW- 4 Sarju Prasad and had pointed a country made  

pistol  at  him  i.e.  PW-4.  Thereafter,  according  to  the  

witnesses, Sarju Prasad ran away to his house and informed  

about the incident to Rameshwar, Bhagwat Prasad (PW-1),  

Ram Sanehi (PW-2), Ram Khilawan and Girija Shankar (PW-3)  

who were  sitting  inside  the  house.  While  PW-4  Sarju  was  

narrating  the  incident  to  his  family  members  all  the  six  

accused persons came to the spot. While the accused Raj  

Bahadur  and  Manni  Lal  were  armed  with  country  made  

pistols the remaining four accused were armed with lathis.  

According to the eye witnesses the accused were shouting  

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that the family of the complainant should be done away with  

as they were old enemies. It is the consistent version of the  

prosecution  witnesses  that  the  accused  armed  with  lathis  

assaulted  the  family  of  the  complainant  and  the  accused  

Manni  Lal  fired  at  Ram  Sanehi  hitting  him  on  his  head.  

Thereafter accused Ram Bahadur fired at Sarju but the shot  

missed him and, instead, hit Sheela causing injuries on her  

arm. Thereafter accused Ram Sanehi fired a second shot at  

Sarju which once again missed him and instead hit Gayatri  

Devi who fell down and died instantaneously. Thereafter all  

the accused persons entered the house of Ram Vishamhar. A  

little  later  firing was heard  from inside the  house of Ram  

Vishambhar. According to the eye witnesses all the accused  

could be identified as the incident had occurred on a moonlit  

night and further there was a lantern burning at the door of  

the house of Rameshwar.  

9. The injuries  sustained by PWs 2,  3  and 4 as  well  as  

those  suffered  by  injured  Sheela  were  proved  by  the  

prosecution by examining PW-9 Dr. G.S. Gaur and PW-10 Dr.  

Y. Vishwakarma who had examined the injured persons on  

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different dates i.e. 21.3.1981, 22.3.1981 and 24.3.1981.The  

prosecution had also examined Dr.  S.K.  Singh (PW-6)  who  

had conducted the  post  mortem of  the  deceased.  On the  

basis of the evidence of the said witness i.e. PW-6 and the  

post mortem report (Exh. Ka-2) the prosecution had sought  

to establish that the deceased Gayatri had died on account  

of gunshot injuries.

10. As  against  the  aforesaid  evidence  adduced  by  the  

prosecution  to  establish  the  charges  levelled  against  the  

accused,  the  defence  had  examined  four  witnesses.  The  

evidence tendered by DWs 2, 3 and 4 would require specific  

notice.  DW-2  Dr.  S.N.  Mishra  (Jail  Doctor)  had  examined  

accused  Jagroop  on  23.3.1981  and  accused  Sahdeo  and  

Manni  Lal  on 27.3.1981.  He had certified that  the  injuries  

found  on  the  accused  were  simple  and  superficial.  DW-3  

Jagdev Prasad had been examined to prove that the accused  

Jagdeo was not present at the place of occurrence and DW-4  

Ram Karan was examined to prove that it is the complainant  

party who were the aggressors and it is on account of the  

firing resorted to by PW-2 Ram Sanehi and PW-4 Sarju that  

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Gayatri Devi had died. Coupled with the above, the absence  

of any explanation on the part of the prosecution with regard  

to the injuries on the accused will also have to be carefully  

weighed while considering the culpability or otherwise of the  

accused-appellants with regard to the crime alleged against  

them.

11. Insofar as the evidence of DW-3 Jagdev Prasad and DW-

4  Ramkaran  is  concerned  there  appears  to  be  certain  

inherent lacunae which makes it difficult for us to accept the  

defence version so as to conclude that the same casts any  

serious doubt on the prosecution story. If accused Sarju, Ram  

Sanehi and Girija Shankar had suffered gun shot injuries in  

the course of the same incident, surely, the said fact would  

have found a mention in the complaint/FIR lodged by Ram  

Vishamabar (Exh.Ka-11). The said fact, though goes to the  

root of the defence version, is conspicuously absent in Exh.  

Ka-11. Two different versions with regard to the place of the  

occurrence  has  been  unfolded  by  the  defence.  While  in  

statement recorded under Section 313 Crl.P.C. accused Ram  

Vishambhar had stated that on the day of occurrence Holi  

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Dahan was performed in his field at the instance of Bhagwat  

Prasad and others and as he had asked them not to perform  

Holi  dahan,  Sarju  and his  associates had beaten  him with  

fists and kicks seeing which his sons Jagroop, Manni Lal and  

Sahdeo had came to his rescue whereupon they were fired at  

by Sarju and others. As against the aforesaid version, the FIR  

version narrated by accused Ram Vishambhar is to the effect  

that on 20.3.1981 at about 10.30 pm accused Jagroop was  

coming to his house from the place of Holi celebrations when  

PW-4 Sarju started abusing  him and at that very time PW-2  

Ram Sanehi and PW-3 Girija Shankar armed with guns and  

PW-4 Sarju armed with country made pistol had threatened  

him (accused Jagroop) with murder and had started beating  

Ram Vishambar and further that when accused Jagroop tried  

to rescue his father, Girija Shankar (PW-3)  fired as a result of  

which Jagroop sustained fire arm injuries. Not only the said  

versions are inconsistent with each other both are belied by  

the fact that  the dead body of the deceased Gayatri Devi  

was found in the house of Rameshwar.

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12. The  above  lacunae,  in  our  considered  view,  when  

considered in the backdrop of the consistent version of the  

prosecution witnesses makes the defence version unworthy  

of acceptance.  

13. The next question that has to be addressed is the effect  

of the injuries sustained by the accused Jagroop, Sahdeo and  

Manni Lal. According to the defence the said injuries were  

sustained in  the course of the same incident.  All  the said  

injuries have been proved by the evidence of DW-2 Dr. S.N.  

Mishra who had conducted the medical examination of the  

accused while they were in police custody. No explanation,  

whatsoever, has been offered by the prosecution with regard  

to the said injuries.  On the aforesaid basis, it is contended  

that in the course of the incident in question there had been  

an exchange of fire from both sides. It is not possible to label  

the accused as the aggressors. Therefore, according to the  

defence no liability under Section 302 IPC can be attributed  

to any of the accused.  In  any event,  as there was a free  

exchange of fire between both the sides, common object to  

commit  any particular  offence cannot be attributed to the  

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accused and Section 149 of IPC cannot be invoked in  the  

present case.

14. We have carefully considered the above aspect of the  

matter.  In  this  regard,  we  have  scrutinized  the  evidence  

adduced  by  the  prosecution  witnesses  as  well  as  by  the  

defence.  The  prosecution  witnesses  have  been  clear,  

consistent and categorical in stating that they could see and  

recognize each of the accused as the incident had occurred  

on a moonlit night and  also there was a lantern burning in  

the  house  of  Rameshwar.  The  said  witnesses  have  been  

equally  emphatic  in  saying that  they had not noticed any  

injuries on any of the accused persons after the incident was  

over.  The  injuries  suffered  by  accused,  though  gun  shot  

injuries,  have  been  stated  by  DW-2,  Dr.S.N.  Mishra  to  be  

simple and superficial injuries. Occurrence of firing inside the  

house of accused Ram Vishambar  after  the  main incident  

was over has been deposed to by the prosecution witnesses  

with a fair amount of clarity and consistency.  Despite the  

above we would not venture into the reasons that had led to  

the aforesaid injuries on the accused inasmuch as the nature  

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of the injuries on the accused being simple and superficial  

the same can be ignored on the basis of principles of law laid  

down by this Court which have virtually set at rest the issue  

raised  on  behalf  of  the  accused.  In  this  regard  the  

observations of this Court in Para 40 of the report in  Ram  

Pat  v.  State  of  Haryana1 would  be  significant  and  

therefore may be usefully extracted below:  

“40. It has furthermore well settled that whereas grievous  injuries  suffered  by  the  accused  are  required  to  be  explained  by  the  prosecution,  simple  injuries  need  not  necessarily be. Non explanation of  simple injuries of  the  nature  suffered  by  the  accused  would  not  be  fatal.  In Hari v. State  of  Maharashtra      :  2009(4)  SCALE103,  this  Court held:

30.  On  the  other  question,  namely,  non-  explanation  of  injury  on  the  accused  persons,  learned  Counsel  for  the  appellant  has  cited  a  decision  in Lakshmi  Singh  and  Ors. v. State  of  Bihar     : 1976CriLJ1736. In the said case, this Court  while  laying  down  the  principle  that  the  prosecution has a duty to explain the injuries on  the  person  of  an  accused  held  that  non- explanation  assumes  considerable  importance  where  the  evidence  consists  of  interested  witnesses and the defence gives a version which  competes  in  probability  with  that  of  the  prosecution case.

31. But while laying down the aforesaid principle,  learned  Judges in  paragraph  12 held  that  there  are  cases  where  the  non-explanation  of  the  injuries  by  the  prosecution  may  not  affect  the  prosecution  case.  This  would  "apply  to  cases  where the injuries sustained by the accused are  minor and superficial or where the evidence is so  

1 2009 (7) SCC 614

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clear  and  cogent,  so  independent  and  disinterested,  so  probable,  consistent  and  creditworthy,  that  it  far  outweighs  the  effect  of  the  omission  on  the  part  of  the  prosecution  to  explain  the  injuries."  Therefore,  no  general  principles  have  been  laid  down  that  non- explanation of  injury on accused person shall  in  all cases vitiate the prosecution case. It depends  on the facts and the case in hand falls within the  exception mentioned in paragraph 12 in Lakshmi  Singh (supra).”

15. In the present case, taking into account the evidence  

tendered by the prosecution witnesses and having regard to  

the nature of the injuries sustained by the accused, we are of  

the view that the absence of any explanation on the part of  

the prosecution with regard to the injuries suffered by the  

accused  will  not  effect  the  core  of  the  charges  levelled  

against the accused-appellants. All  the six accused on the  

day of the occurrence had assembled in front of the house of  

Rameshwar. They were armed with lethal weapons and were  

threatening to kill the family members of the complainant.  

Initially  the  accused  persons  had  assaulted  the  family  

members of the complainant with lathis. Thereafter accused  

Manni Lal fired at PW-2 Ram Sanehi from the weapon he was  

carrying and injured him. Accused Raj Bahadur fired twice at  

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PW-4 Sarju. Both the shots had missed the target and had  

instead, caused injuries to Kr. Sheela and one of the shots  

fired by the said accused Raj Bahadur had resulted in the  

death of Gayatri Devi. On the said facts, we can find no error  

in the conviction of the accused Raj Bahadur under Section  

302  read  with  Section  301  IPC  as  well  the  conviction  

recorded against the said accused Raj Bahadur and accused  

Manni Lal under Section 307 IPC. We are, further, of the view  

that the facts proved by the prosecution clearly establishes  

that the accused persons had formed an unlawful assembly  

the  common  object  of  which  was  to  cause  death  of  the  

members of the family of the complainant.  The remaining  

accused, therefore, are liable under Section 149 IPC for the  

death  of  Gayatri  Devi  and  also  for  the  lesser  offences  

committed under Section 307 and 323/149 IPC in the course  

of  prosecution  of  the  common  object  of  the  unlawful  

assembly. It is also our considered view that the conviction of  

the two sets of accused under Sections 147 and 148 IPC has  

been  correctly  made.  As  the  sentences  for  the  lesser  

offences  have  been  directed  to  run  concurrently  with  the  

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sentence  of  life  imprisonment  imposed  on  each  of  the  

accused  there  will  be  no  occasion  for  us  to  cause  any  

interference with any of the sentences imposed.

16. Accordingly, we find no merit in either of the appeals so  

as  to  warrant  interference  with  the  judgment  and  order  

dated  23.8.2007  passed  by  the  High  Court  of  Allahabad.  

Consequently,  both the appeals  shall  stand dismissed and  

the convictions and sentences recorded against each of the  

accused shall stand affirmed.  

...…………………………J. [P. SATHASIVAM]

.........……………………J. [RANJAN GOGOI]

New Delhi, January 11, 2013.

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